B-136212, JUN. 13, 1958

B-136212: Jun 13, 1958

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THE EMPLOYEE'S REGULARLY SCHEDULED HOURS OF DUTY WERE 7:00 A.M. ORDINARILY THE EMPLOYEE WOULD HAVE BEEN EXCUSED FROM DUTY BECAUSE OF THE HALF HOLIDAY THAT TUESDAY. IT WAS NECESSARY THAT HE REMAIN ON DUTY UNTIL 11:45 A.M. THE EMPLOYEE WAS PAID ADMINISTRATIVELY ONLY THREE-FOURTHS OF AN HOUR OF HOLIDAY PREMIUM PAY FOR THE TIME ACTUALLY WORKED DURING THE "HOLIDAY" PORTION OF THAT DAY. THE PAYMENT OF ONLY THREE-FOURTHS OF AN HOURS' PAY APPEARS TO HAVE BEEN BASED UPON THE REGULATION NCPI 85.6-2E (C.S. 740. WHICH APPARENTLY WOULD HAVE APPLIED ON DECEMBER 31. THAT SECTION PROVIDES IN PERTINENT PART THAT ANY EMPLOYEE WHO IS "REQUIRED TO PERFORM ANY WORK" ON A HOLIDAY. THE PROVISIONS OF NCPI 85.6-3H EXPRESSLY CONCERNED "A GRADED EMPLOYEE WHO IS REQUIRED TO REPORT IN.

B-136212, JUN. 13, 1958

TO LIEUTENANT R. R. HARVEY, S. C., DISBURSING OFFICER, U.S. NAVAL AIR STATION, NORTH ISLAND, DEPARTMENT OF THE NAVY:

BY LETTER DATED MAY 19, 1958, JAG:132:MBC, SERIAL NO. 4198, THE JUDGE ADVOCATE GENERAL FORWARDED TO US A COPY OF YOUR LETTER DATED MARCH 3, 1958, FILE 13.32/HW:JAL SER 732, REQUESTING OUR DECISION WHETHER THE EMPLOYEE NAMED ON THE ENCLOSED VOUCHER MAY BE PAID THE PROPOSED ADDITIONAL COMPENSATION--- REPRESENTING THE UNPAID PORTION OF TWO HOURS' HOLIDAY PREMIUM PAY--- FOR THE FORTY-FIVE MINUTES OF NON OVERTIME WORK HE PERFORMED ON THE HALF HOLIDAY OF DECEMBER 31, 1957, IN THE CIRCUMSTANCES OUTLINED BELOW.

THE EMPLOYEE'S REGULARLY SCHEDULED HOURS OF DUTY WERE 7:00 A.M. TO 3:30 P.M., MONDAY THROUGH FRIDAY. EXECUTIVE ORDER NO. 10744 PROVIDED THAT THE FIELD SERVICES OF THE RESPECTIVE DEPARTMENTS MIGHT BE EXCUSED FROM DUTY FOR ONE-HALFDAY ON TUESDAY, DECEMBER 31, 1957, AND THAT SUCH ONE-HALF DAY SHOULD BE CONSIDERED A HOLIDAY WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10358 AND OF ALL STATUTES RELATING TO THE COMPENSATION AND LEAVE OF GOVERNMENT EMPLOYEES. ORDINARILY THE EMPLOYEE WOULD HAVE BEEN EXCUSED FROM DUTY BECAUSE OF THE HALF HOLIDAY THAT TUESDAY, BEGINNING AT 11:00 A.M., BUT IT WAS NECESSARY THAT HE REMAIN ON DUTY UNTIL 11:45 A.M. TO PERFORM CERTAIN ESSENTIAL SERVICES. HOWEVER, THE EMPLOYEE WAS PAID ADMINISTRATIVELY ONLY THREE-FOURTHS OF AN HOUR OF HOLIDAY PREMIUM PAY FOR THE TIME ACTUALLY WORKED DURING THE "HOLIDAY" PORTION OF THAT DAY. THE VOUCHER ENCLOSED COVERS AN ADDITIONAL ONE AND ONE-FOURTH HOURS' HOLIDAY PAY FOR THE FORTY-FIVE MINUTES OF HOLIDAY WORK.

THE PAYMENT OF ONLY THREE-FOURTHS OF AN HOURS' PAY APPEARS TO HAVE BEEN BASED UPON THE REGULATION NCPI 85.6-2E (C.S. 740, 31 JANUARY 1958). THAT PARAGRAPH SUPERSEDED SIMILAR PROVISIONS UNDER PRIOR PARAGRAPH 85.6-3H (C.S. 559, 17 FEBRUARY 1955), WHICH APPARENTLY WOULD HAVE APPLIED ON DECEMBER 31, 1957. EACH OF THOSE PARAGRAPHS OF THE NAVY REGULATIONS, WHICH APPEAR TO BE PREDICATED UPON SECTION 302 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 68 STAT. 1110, 5 U.S.C. 922 (B) SEEM TO LIMIT PAYMENT UNDER 302 (B) TO "CALL BACK" SITUATIONS. HOWEVER, THAT SECTION PROVIDES IN PERTINENT PART THAT ANY EMPLOYEE WHO IS "REQUIRED TO PERFORM ANY WORK" ON A HOLIDAY---SUCH AS THAT DESIGNATED BY EXECUTIVE ORDER NO. 10744--- SHALL BE COMPENSATED FOR AT LEAST TWO HOURS OF SUCH WORK. THE PROVISIONS OF NCPI 85.6-3H EXPRESSLY CONCERNED "A GRADED EMPLOYEE WHO IS REQUIRED TO REPORT IN, OR IS CALLED IN, TO WORK ON A HOLIDAY WITHIN HIS BASIC WORKWEEK.' PARAGRAPH 85.6-2E OF THE PRESENT REGULATIONS, EXTENDING TO UNGRADED EMPLOYEES THE BENEFITS OF SECTION 302 OF THE 1945 PAY ACT, CONTAINS LANGUAGE SIMILAR TO THAT QUOTED FROM PARAGRAPH 85.6-3H. HOWEVER, SECTION 302 (B) OF THE ACT EXPRESSLY COVERS "ANY WORK" WHICH IS REQUIRED OF SUCH AN EMPLOYEE ON SUCH A HOLIDAY AND MAKES NO DISTINCTION--- SUCH AS WHETHER HE IS CALLED IN OR WHETHER HE REMAINS ON DUTY--- FOR WORK EXTENDING INTO A HALF-DAY HOLIDAY PERIOD AS HERE IN QUESTION. THE EFFECT WOULD BE THE SAME IN THIS CASE. THEREFORE WE CONCUR IN THE VIEW OF THE NAVY DEPARTMENT'S OFFICE OF INDUSTRIAL RELATIONS, THAT ENTITLEMENT TO HOLIDAY PREMIUM PAY UNDER SECTION 302 (B) IS NOT CONTINGENT UPON THE EMPLOYEE BEING CALLED BACK TO PERFORM DUTY DURING A HALF-DAY HOLIDAY PERIOD. IN THAT REGARD THAT OFFICE ALSO ADVISES US THAT THE THIRD SENTENCE IN PARAGRAPH 85.6-2E WAS PLACED IN THE INSTRUCTION (NCPI) TO CLARIFY THE FACT THAT AN EMPLOYEE IS NOT ENTITLED TO BOTH OVERTIME PAY AND HOLIDAY PAY FOR A SINGLE CALL BACK FOR HOLIDAY DUTY WHICH OTHERWISE WOULD FALL WHOLLY WITHIN THE EMPLOYEE'S BASIC WORKWEEK.

IN THE LIGHT OF THE FOREGOING CONCLUSIONS, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE PAID, IF OTHERWISE CORRECT.