B-102974, B-102973, B-102897, FEBRUARY 11, 1952, 31 COMP. GEN. 370

B-102897,B-102973,B-102974: Feb 11, 1952

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OR PIECEWORK RATES OF PAY WERE FIXED BY A WAGE BOARD OR OTHER WAGE-FIXING AUTHORITY. HOLDING THAT GOVERNMENT PRINTING OFFICE PER DIEM EMPLOYEES WERE ENTITLED UNDER THE TERMS OF A WAGE AGREEMENT TO SUCH PREMIUM AND GRATUITY PAY. WILL BE DISALLOWED BY THE GENERAL ACCOUNTING OFFICE WITHOUT FURTHER DEVELOPMENT IN THE ABSENCE OF A WAGE AGREEMENT SIMILAR TO THE ONE IN THE KELLY CASE. WHICH HAVE BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT ARE THOSE OF ARCHIE B. PURSUANT TO WHICH THE CLAIMS ARE ASSERTED. THE CLAIMANTS WILL BE CONSIDERED. THE CLAIMS WILL BE CONSIDERED AS COVERING PERIODS PRIOR TO FEBRUARY 1946. DURING WHICH MONTHS THERE WERE PROMULGATED ADMINISTRATIVE REGULATIONS CHANGING THE PRACTICE THERETOFORE PREVAILING WITH RESPECT TO COMPENSATING SUCH EMPLOYEES FOR WORK PERFORMED ON HOLIDAYS.

B-102974, B-102973, B-102897, FEBRUARY 11, 1952, 31 COMP. GEN. 370

COMPENSATION - EMPLOYEES SUBJECT TO WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES - PREMIUM PAY FOR HOLIDAY WORK CLAIMS OF EMPLOYEES OF THE DEPARTMENTS OF THE ARMY AND THE NAVY--- WHOSE PER DIEM, PER HOUR, OR PIECEWORK RATES OF PAY WERE FIXED BY A WAGE BOARD OR OTHER WAGE-FIXING AUTHORITY--- FOR PREMIUM AND GRATUITY PAY FOR SERVICES RENDERED ON HOLIDAYS DURING WORLD WAR II, SUBMITTED AS A RESULT OF THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF JOHN STUART KELLY, ET AL. V. UNITED STATES, AS AFFIRMED BY THE SUPREME COURT, HOLDING THAT GOVERNMENT PRINTING OFFICE PER DIEM EMPLOYEES WERE ENTITLED UNDER THE TERMS OF A WAGE AGREEMENT TO SUCH PREMIUM AND GRATUITY PAY, WILL BE DISALLOWED BY THE GENERAL ACCOUNTING OFFICE WITHOUT FURTHER DEVELOPMENT IN THE ABSENCE OF A WAGE AGREEMENT SIMILAR TO THE ONE IN THE KELLY CASE.

DECISION BY COMPTROLLER GENERAL WARREN, FEBRUARY 11, 1952:

REPRESENTATIVE OF NUMEROUS CLAIMS BASED UPON THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF JOHN STUART KELLY, ET AL. V. UNITED STATES, DECIDED APRIL 3, 1951, 119 C.1CLS. 197, 96 F.1SUPP. 611, WHICH HAVE BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT ARE THOSE OF ARCHIE B. TOWLES, JAMES C. WHALEY, AND JESSE M. MURPHY--- SAID CLAIMS BEING FOR PREMIUM AND "GRATUITY PAY" FOR SERVICES RENDERED UNDER THE WAR DEPARTMENT (NOW THE DEPARTMENT OF THE ARMY) OR THE NAVY DEPARTMENT ON HOLIDAYS, PRINCIPALLY DURING WORLD WAR II.

SINCE THE KELLY CASE, PURSUANT TO WHICH THE CLAIMS ARE ASSERTED, DID NOT INVOLVE PER ANNUM EMPLOYEES, THE CLAIMANTS WILL BE CONSIDERED, FOR PRESENT PURPOSES, AS HAVING BEEN PAID UPON A PER DIEM, PER HOUR, OR PIECEWORK BASIS AT RATES FIXED BY A PROPERLY CONSTITUTED WAGE BOARD OR OTHER WAGE- FIXING AUTHORITY. ALSO, THE CLAIMS WILL BE CONSIDERED AS COVERING PERIODS PRIOR TO FEBRUARY 1946, DURING WHICH MONTHS THERE WERE PROMULGATED ADMINISTRATIVE REGULATIONS CHANGING THE PRACTICE THERETOFORE PREVAILING WITH RESPECT TO COMPENSATING SUCH EMPLOYEES FOR WORK PERFORMED ON HOLIDAYS.

THE COURT OF CLAIMS HELD IN THE KELLY CASE, 96 F.1SUPP. 611, SUPRA, THAT CERTAIN EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, REFERRED TO GENERALLY AS "PER DIEM" EMPLOYEES, WERE ENTITLED TO PREMIUM PAY AND "GRATUITY PAY," IN ADDITION TO THEIR REGULAR PAY ALREADY RECEIVED, FO SERVICES RENDERED ON VARIOUS HOLIDAYS DURING THE PERIOD SEPTEMBER 1, 1943 TO OCTOBER 15, 1945. REVIEW OF THAT PART OF THE HOLDING WITH RESPECT TO GRATUITY PAY WAS OBTAINED AND THE JUDGMENT OF THE COURT OF CLAIMS WAS AFFIRMED BY THE SUPREME COURT OF THE UNITED STATES ON JANUARY 2, 1952, UNITED STATES V. JOHN STUART KELLY, ET AL., NO. 209, 342 U.S. 193, THE CONCLUSION OF BOTH COURTS BEING BASED UPON THE NARROW GROUND OF THE TERMS OF A "HOLIDAY RATE" CLAUSE IN A WAGE AGREEMENT NEGOTIATED IN 1924--- AND ALLEGEDLY INCLUDED IN SUBSEQUENT AMENDMENTS THERETO--- BETWEEN THE PUBLIC PRINTER AND JOURNEYMEN PRINTERS PURSUANT TO THE ACT OF JUNE 7, 1924, 43 STAT. 658, AND NOT UPON THE BASIS OF ANY STATUTE GRANTING HOLIDAY PAY TO FEDERAL EMPLOYEES. THE PERTINENT PART OF THE CLAUSE AS QUOTED IN THE SUPREME COURT'S OPINION READS AS FOLLOWS:

EMPLOYEES REQUIRED TO WORK ON A LEGAL HOLIDAY OR A SPECIAL HOLIDAY DECLARED BY EXECUTIVE ORDER SHALL BE PAID AT THE DAY RATE PLUS 50 PERCENT FOR ALL THE TIME ACTUALLY EMPLOYED IN ADDITION TO THEIR GRATUITY PAY FOR THE HOLIDAY AS PROVIDED BY LAW * * *.

THE DEPARTMENT OF THE NAVY HAS REPORTED TO THIS OFFICE THAT THERE WAS NO "AGREEMENT" IN EFFECT PRIOR TO FEBRUARY 1946 GRANTING TO ITS EMPLOYEES OF THE CLASSES INVOLVED IN THE INSTANT CLAIMS PREMIUM PAY FOR WORK ON HOLIDAYS DURING THE REGULAR 40-HOUR WORKWEEK. SEE, IN THAT CONNECTION, 25 COMP. GEN. 584. ALSO THE DEPARTMENT OF THE NAVY REPORTS THAT, AS A RESULT OF THE COMPTROLLER GENERAL'S INTERPRETATION OF JOINT RESOLUTION NO. 127 OF JUNE 29, 1938, INFRA--- CONSIDERED AS HAVING REPEALED JOINT RESOLUTION OF JANUARY 6, 1885, 23 STAT. 516, AS AMENDED- - THERE WAS ABROGATED THE FORMER PRACTICE UNDER WHICH PER DIEM AND SIMILARLY PAID EMPLOYEES WHO WORKED ON A HOLIDAY WERE ALLOWED PAY FOR THE WORK DONE PLUS " GRATUITY PAY" FOR THE HOLIDAY. THE REPORT OF THE DEPARTMENT OF THE ARMY IN THE MATTER OF PREMIUM AND "GRATUITY" HOLIDAY PAY IS TO THE SAME EFFECT.

THE ONLY STATUTORY PROVISION PERTINENT TO THE HOLIDAY PAY CLAIMS IN QUESTION IS PUBLIC RESOLUTION NO. 127 APPROVED JUNE 29, 1938, 52 STAT. 1246, WHICH PROVIDES IN SUBSTANCE THAT WHENEVER EMPLOYEES PAID UPON A PER DIEM, PER HOUR, OR PIECEWORK BASIS ARE "RELIEVED OR PREVENTED FROM WORKING" SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY, THEY SHALL RECEIVE THE SAME PAY AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED. SINCE THAT ENACTMENT, THE DECISIONS OF THIS OFFICE CONSISTENTLY HAVE HELD THAT WHEN PER DIEM EMPLOYEES WORK ON A HOLIDAY (THAT IS, WHEN NOT "RELIEVED OR PREVENTED FROM WORKING") THEY ARE NOT ENTITLED AS A MATTER OF LAW TO "GRATUITY AY" IN ADDITION TO THEIR PAY FOR WORK DONE. 18 COMP. GEN. 186; ID. 191; ID. 206. THE DECISION OF THE SUPREME COURT IN THE KELLY CASE DOES NOT REQUIRE ANY CHANGE IN THAT CONSTRUCTION.

ACCORDINGLY, SINCE THERE IS NO LAW AUTHORIZING THE ADDITIONAL COMPENSATION HERE CLAIMED FOR HOLIDAYS ON WHICH SERVICES WERE RENDERED BY PER DIEM, PER HOUR, OR PIECEWORK EMPLOYEES AND SINCE THERE DOES NOT APPEAR TO HAVE EXISTED AN "AGREEMENT" SIMILAR TO THE ONE INVOLVED IN THE KELLY CASE WHICH CALLED FOR PAYMENT OF SUCH ADDITIONAL COMPENSATION TO EMPLOYEES IN EITHER THE DEPARTMENT OF THE NAVY OR THE WAR DEPARTMENT, CLAIMS OF THE NATURE DESCRIBED IN THE FIRST TWO PARAGRAPHS HEREOF WHICH ARE BASED UPON SERVICES UNDER THOSE DEPARTMENTS WILL BE DISALLOWED BY THE GENERAL ACCOUNTING OFFICE WITHOUT FURTHER DEVELOPMENT ..END :