B-115254, OCTOBER 23, 1953, 33 COMP. GEN. 187

B-115254, OCTOBER 23, 1953, 33 COMP. GEN. 187

COMPENSATION - HOLIDAYS - FIREFIGHTERS, ETC. - TWENTY-FOUR HOURS DUTY AS CONSTITUTING TWO WORKDAYS THE PROVISIONS OF EXECUTIVE ORDER NO. 10358 WHICH EXCUSE EMPLOYEES FROM WORK ON HOLIDAYS ARE NOT INTENDED TO OPERATE SO AS TO DIMINISH THE HOLIDAY PAY WHICH OTHERWISE WOULD BE PAYABLE TO A FIREFIGHTER UNDER THE HOLIDAY PAY PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND THEREFORE A FIREFIGHTER WHOSE TWENTY-FOUR HOUR DUTY SHIFT INCLUDES ON-CALL DUTY OF TWELVE HOURS ON A HOLIDAY IS ENTITLED TO PAYMENT OF HOLIDAY PAY FOR EIGHT HOURS ON THE HOLIDAY, UNDER THE TWO THIRDS RULE AND THE HOLIDAY PAY PROVISIONS OF THE ACT, EVEN THOUGH SUCH SHIFT DID NOT BEGIN ON THE HOLIDAY. FOR THE PURPOSE OF HOLIDAY PAY COMPENSATION PAYABLE UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, A FIREFIGHTER'S TWENTY- FOUR HOURS OF DUTY IN SEQUENCE IS TO BE REGARDED AS CONSTITUTING TWO CONTINUOUS TWELVE HOUR WORKDAYS.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, OCTOBER 23, 1953:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 2, 1953, FROM THE DEPUTY ADMINISTRATOR, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT NO. 2162838, DATED JULY 17, 1953, IN THE AMOUNT OF $28.32, REPRESENTING ADDITIONAL COMPENSATION CLAIMED AND FOUND TO BE DUE DAVID WOODBY FOR HOLIDAY WORK PERFORMED BY HIM ON DECEMBER 26, 1952, AND JANUARY 1, 1953, AS AN EMPLOYEE (FIREFIGHTER) OF THE VETERANS ADMINISTRATION HOSPITAL, MEMPHIS, TENNESSEE. IN THE EVENT CERTIFICATE OF SETTLEMENT NO. 2162838 IS SUSTAINED, YOU REQUEST A DECISION WHETHER A FIREFIGHTER'S 24 HOURS OF DUTY IN SEQUENCE MAY BE REGARDED AS CONSTITUTING TWO CONSECUTIVE 12-HOUR WORKDAYS.

IT APPEARS THAT MR. WOODBY IS EMPLOYED AS A FIREFIGHTER WHOSE WEEKLY TOUR OF DUTY CONSISTS OF TWO 24-HOUR SHIFTS AND ONE 12-HOUR SHIFT, OR 60 HOURS PER WEEK, AND THAT THE EMPLOYEE IS SUBJECT TO THE TWO-THIRDS RULE WHEREBY THE 60 HOURS ARE BROKEN DOWN TO ALLOW 20 HOURS FOR SLEEPING AND EATING AND SALARY PAYMENT MADE ON THE BASIS OF 40 HOURS. PAYMENT FOR OVERTIME PERFORMED IN EXCESS OF THE 60-HOUR TOUR OF DUTY IS MADE ON THE BASIS OF TWO-THIRDS OF EACH HOUR OF SERVICE.

IT IS STATED THAT MR. WOODBY'S WORKDAYS FOR THE PAY PERIOD DECEMBER 21, 1952, THROUGH JANUARY 3, 1953, WERE AS FOLLOWS:

CHART 12 NOON, TUESDAY, DECEMBER 23 TO 12 NOON WEDNESDAY, DECEMBER 24. 12 NOON, THURSDAY, DECEMBER 25 TO 12 NOON FRIDAY, DECEMBER 26. 12 NOON, SATURDAY, DECEMBER 27 TO 12 NOON SUNDAY, DECEMBER 28. 12 NOON, WEDNESDAY, DECEMBER 31 TO 12 NOON THURSDAY, JANUARY 1. 12 NOON, FRIDAY, JANUARY 2 TO 12 NOON SATURDAY, JANUARY 3.

SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 60 STAT. 218, RELATIVE TO COMPENSATION FOR HOLIDAY WORK, PROVIDES, IN EFFECT, THAT EMPLOYEES SHALL BE COMPENSATED FOR NOT TO EXCEED 8 HOURS OF THE ASSIGNED "DUTY ON A HOLIDAY" DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER DURING HOURS WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORK WEEK OF 40 HOURS AND AT TWICE THE RATE OF REGULAR BASIC COMPENSATION, IN ADDITION TO EXTRA PAY FOR NIGHT DUTY.

EXECUTIVE ORDER NO. 10358, JUNE 9, 1952, PROVIDES THAT THE TERM "HOLIDAY" AS USED THEREIN SHALL INCLUDE THE SPECIFIC DAYS MENTIONED, INCLUDING DECEMBER 25, AND JANUARY 1 AND "ANY OTHER CALENDAR DAY DESIGNATED AS A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER.' PURSUANT TO EXECUTIVE ORDER NO. 10417A, DECEMBER 6, 1952, DECEMBER 26, 1952, WAS CONSIDERED AS A HOLIDAY FOR PAY PURPOSES.

SECTIONS 2 (B), 6 AND 7 OF EXECUTIVE ORDER NO. 10358, PROVIDE AS FOLLOWS:

(B) "WORKDAY" MEANS THOSE HOURS WHICH COMPRISE IN SEQUENCE THE EMPLOYEE'S REGULAR DAILY TOUR OF DUTY WITHIN ANY 24-HOUR PERIOD, WHETHER FALLING ENTIRELY WITHIN ONE CALENDAR DAY OR NOT.

SEC. 6. ANY EMPLOYEE WHOSE WORKDAY COVERS PORTIONS OF TWO CALENDAR DAYS AND WHO WOULD, EXCEPT FOR THIS SECTION, ORDINARILY BE EXCUSED FROM WORK SCHEDULED FOR THE HOURS OF ANY CALENDAR DAY ON WHICH A HOLIDAY FALLS, SHALL INSTEAD BE EXCUSED FROM WORK ON HIS ENTIRE WORKDAY WHICH COMMENCES ON ANY SUCH CALENDAR DAY.

SEC. 7. IN ADMINISTERING THE PROVISIONS OF LAW RELATING TO PAY AND LEAVE OF ABSENCE, THE WORKDAYS REFERRED TO IN SECTIONS 4, 5, AND 6 SHALL BE TREATED AS HOLIDAYS IN LIEU OF THE CORRESPONDING CALENDAR HOLIDAYS.

PAYMENT WAS MADE ADMINISTRATIVELY AT THE HOLIDAY RATE FOR 8 HOURS OF THE WORKDAY, 12 NOON THURSDAY, DECEMBER 25 TO 12 NOON, DECEMBER 26, SINCE THAT DAY WAS CONSIDERED AS THE HOLIDAY UNDER SECTION 6 OF EXECUTIVE ORDER NO. 10358. NO PAYMENT AT THE HOLIDAY RATE WAS MADE ADMINISTRATIVELY FOR DECEMBER 26 AND JANUARY 1, SINCE THE EMPLOYEE DID NOT BEGIN A WORKDAY ON THOSE DAYS.

WHILE A LITERAL READING OF THE QUOTED PROVISIONS OF THE EXECUTIVE ORDER TENDS TO SUPPORT THE CONCLUSION REACHED BY THE VETERANS ADMINISTRATION IN THIS MATTER, IT IS THE CONSIDERED VIEW OF THIS OFFICE THAT THE EXECUTIVE ORDER WAS NOT INTENDED TO OPERATE SO AS TO DIMINISH THE HOLIDAY PAY WHICH OTHERWISE WOULD BE PAYABLE TO MR. WOODBY, A FIREFIGHTER, UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT. FOR THE PURPOSE OF HOLIDAY COMPENSATION PAYABLE UNDER THE ACT, SUPRA, HIS 24 HOURS OF DUTY IN SEQUENCE IS TO BE REGARDED AS CONSTITUTING TWO CONTINUOUS 12-HOUR WORKDAYS. ACCORDINGLY, THE EMPLOYEE, IN FACT, HAVING PERFORMED ON-CALL DUTY OF 12 HOURS ON EACH OF THE THREE HOLIDAYS INVOLVED, IS ENTITLED, UNDER THE TWO-THIRDS RULE AND THE HOLIDAY PAY PROVISION OF THE STATUTE, TO PAYMENT OF HOLIDAY PAY FOR 8 HOURS ON EACH OF THE THREE DAYS, AS ALLOWED IN THE SETTLEMENT OF JULY 17, 1953.