A-99394, NOVEMBER 26, 1938, 18 COMP. GEN. 481

A-99394: Nov 26, 1938

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INCLUDING APPLICABILITY TO ALASKA RAILROAD SECTION GANG LABORERS GENERALLY THE TERM "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY. INCLUDES ALL EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS REQUIRED TO BE MEASURED IN THE MANNER SPECIFIED NOT EMPLOYED ON AN INTERMITTENT BASIS. WHO WERE ENTITLED TO HOLIDAY PAY UNDER THE STATUTES IN FORCE PRIOR TO SAID RESOLUTION. " AND ENTITLED TO PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED IF ALL OF THE CONDITIONS OF THE HOLIDAY-PAY STATUTES. ARE MET. NOTWITHSTANDING THEY ARE PAID FROM ALLOTTED EMERGENCY RELIEF ACT FUNDS. EMPLOYEES EMPLOYED FOR DEFINITE PERIODS OF LESS THAN 6 MONTHS ORDINARILY SHOULD NOT BE GRANTED PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED.

A-99394, NOVEMBER 26, 1938, 18 COMP. GEN. 481

COMPENSATION - HOLIDAYS - SCOPE AND PURPOSE OF PUBLIC RESOLUTION NO. 127, INCLUDING APPLICABILITY TO ALASKA RAILROAD SECTION GANG LABORERS GENERALLY THE TERM "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS" APPEARING IN THE HOLIDAY-PAY RESOLUTION OF JUNE 29, 1938, 52 STAT. 1246, INCLUDES ALL EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS REQUIRED TO BE MEASURED IN THE MANNER SPECIFIED NOT EMPLOYED ON AN INTERMITTENT BASIS, OR FROM DAY TO DAY, OR FOR DEFINITE PERIODS OF LESS THAN 6 MONTHS, WHO WERE ENTITLED TO HOLIDAY PAY UNDER THE STATUTES IN FORCE PRIOR TO SAID RESOLUTION, INCLUDING BOTH PERMANENT AND TEMPORARY EMPLOYEES. THE HOLIDAY-PAY RESOLUTION OF JUNE 29, 1938, 52 STAT. 1246, DOES NOT ENLARGE THE CLASSES OF EMPLOYEES ENTITLED TO HOLIDAY PAY WITHOUT WORKING, BUT MERELY CHANGES THE BASIS FOR PAYMENT. SECTION GANG LABORERS OF THE ALASKA RAILROAD, IF APPOINTED FOR INDEFINITE PERIODS, OR FOR DEFINITE PERIODS OF 6 MONTHS OR MORE, OR FOR PERIODS "NOT TO EXCEED 6 MONTHS" AND REQUIRED TO WORK OR BE AVAILABLE FOR DUTY FULL TIME DURING A REGULAR TOUR OF DUTY, BEING EITHER PERMANENT, TEMPORARY OR INDEFINITE EMPLOYEES, MAY BE REGARDED AS "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT," AND ENTITLED TO PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED IF ALL OF THE CONDITIONS OF THE HOLIDAY-PAY STATUTES, 52 STAT. 1246, AS OUTLINED IN 18 COMP. GEN. 186; ID. 191; ID. 207; ID. 225; ID. 259; AND ID. 378, ARE MET, NOTWITHSTANDING THEY ARE PAID FROM ALLOTTED EMERGENCY RELIEF ACT FUNDS, BUT EMPLOYEES EMPLOYED FOR DEFINITE PERIODS OF LESS THAN 6 MONTHS ORDINARILY SHOULD NOT BE GRANTED PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, NOVEMBER 26, 1938:

YOUR LETTER OF NOVEMBER 14, 1938, IS AS FOLLOWS:

THERE HAS BEEN RECEIVED FROM COLONEL O. F. OHLSON, GENERAL MANAGER OF THE ALASKA RAILROAD, THE FOLLOWING RADIOGRAM:

"CAN LABORERS ON SECTION GANG WHO HAVE WORKED STEADY FOR RAILROAD FOR NUMBER OF YEARS BUT WHO ARE NOW PAID FROM E.R.A. FUNDS BE CONSIDERED REGULAR EMPLOYEES UNDER ACT OF JUNE 29, 1938, SO AS TO ENTITLE THEM TO PAY FOR LABOR DAY WHEN NO SERVICE PERFORMED? CAN LABORERS HIRED FOR E.R.A. WORK BUT WHO HAVE WORKED STEADY SEVERAL MONTHS ON SECTION GANG BE PAID FOR HOLIDAY? PLEASE RUSH ANSWER.'

IN THIS CONNECTION, THE FOLLOWING INFORMATION IS SUBMITTED FOR CONSIDERATION IN ARRIVING AT YOUR DECISION:

THE SECTION GANGS OF THE RAILROAD, CONSISTING OF A FOREMAN AND ONE OR MORE LABORERS, WERE ON WINTER BASIS AT THE TIME THE ALLOTMENT FROM THE EMERGENCY RELIEF APPROPRIATION WAS MADE TO THE ALASKA RAILROAD. THESE MEN WERE PAID FROM REGULAR FUNDS. UPON RECEIPT OF THE EMERGENCY RELIEF ALLOTMENT, FURLOUGHED LABORERS WERE CALLED BACK TO SERVICE AND NEW LABORERS WERE ALSO HIRED, ALL OF WHOM WERE PAID FROM EMERGENCY RELIEF FUNDS AND PERFORMED THE SAME WORK AND WORKED UNDER THE SAME CONDITIONS AS EMPLOYEES PAID FROM THE REGULAR FUND. THE FURLOUGHED EMPLOYEES WHO RETURNED TO WORK ARE CONSIDERED PERMANENT EMPLOYEES. YOUR DECISION OF MARCH 3, 1937, A-79026, PROVIDES THAT SECTION GANG EMPLOYEES OF THE RAILROAD, ALTHOUGH HIRED ON A PER DIEM BASIS, ARE CONSIDERED REGULAR EMPLOYEES AND ENTITLED TO LEAVE PRIVILEGES. THE NEW EMPLOYEES WERE HIRED FOR A DEFINITE PERIOD NOT TO EXCEED SIX MONTHS. ALL OF THEM WORKED THE LAST DAY PRECEDING THE HOLIDAY AND RESUMED WORK THE DAY FOLLOWING LABOR DAY. MONDAY WOULD HAVE BEEN CONSIDERED A REGULAR WORK DAY FOR ALL OF THESE EMPLOYEES. SEVERAL OF THE MEN IN EACH GANG WERE PAID FROM REGULAR FUNDS AND THE REMAINDER FROM EMERGENCY RELIEF FUNDS.

IT IS URGENT THAT THIS INFORMATION BE PROVIDED AT AS EARLY A DATE AS PRACTICABLE AND IT WILL BE GREATLY APPRECIATED THEREFORE IF YOUR DECISION MAY BE EXPEDITED.

PUBLIC RESOLUTION NO. 127, SEVENTY-FIFTH CONGRESS, DATED JUNE 29, 1938, PROVIDES AS FOLLOWS:

THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON APIECE WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS, ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

GENERALLY, THE TERM "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS" INCLUDES ALL EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS REQUIRED TO BE MEASURED IN THE MANNER SPECIFIED NOT EMPLOYED ON AN INTERMITTENT BASIS OR FROM DAY TO DAY, OR FOR DEFINITE PERIODS OF LESS THAN 6 MONTHS, WHO WERE ENTITLED TO HOLIDAY PAY UNDER THE STATUTES IN FORCE PRIOR TO JUNE 29, 1938, INCLUDING BOTH PERMANENT AND TEMPORARY EMPLOYEES. DECISION OF OCTOBER 25, 1938, A-97193, 18 COMP. GEN. 378. THE PUBLIC RESOLUTION OF JUNE 29, 1938, SUPRA, WAS NOT INTENDED TO AND DOES NOT ENLARGE THE CLASSES OF EMPLOYEES ENTITLED TO HOLIDAY PAY WITHOUT WORKING, BUT MERELY CHANGES THE BASIS OF PAYMENT.

THE SOLE FACT THAT THE EMPLOYEES MENTIONED IN YOUR LETTER ARE PAID FROM FUNDS ALLOTTED TO THE ALASKA RAILROAD UNDER THE EMERGENCY RELIEF ACT WOULD NOT PRECLUDE THEM FROM RECEIVING HOLIDAY PAY. HOWEVER, EMPLOYEES WHO ARE EMPLOYED FOR DEFINITE PERIODS OF LESS THAN 6 MONTHS ORDINARILY SHOULD NOT BE GRANTED PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED. IF THEIR APPOINTMENTS ARE FOR INDEFINITE PERIODS OR FOR DEFINITE PERIODS OF 6 MONTHS OR MORE, OR THEIR APPOINTMENTS READ "NOT TO EXCEED 6 MONTHS" AND THEY ARE REQUIRED TO WORK OR TO BE AVAILABLE FOR DUTY FULL TIME DURING A REGULAR TOUR OF DUTY, THEY MAY BE REGARDED AS COMING WITHIN THE TERM "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT," BEING EITHER PERMANENT, TEMPORARY, OR INDEFINITE EMPLOYEES AND ENTITLED TO PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED IF ALL OF THE CONDITIONS OF THE STATUTE HAVE BEEN MET. AS TO THESE CONDITIONS, SEE 18 COMP. GEN. 186; ID. 191; ID. 207; ID. 225; ID. 259; DECISION OF OCTOBER 25, 1938, A-97193, 18 ID. 378.