B-160617, OCT. 12, 1967

B-160617: Oct 12, 1967

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HOLIDAYS FOR 10 YEAR PERIOD WHEN GERMAN HOLIDAYS WERE SUBSTITUTED FOR U.S. HOLIDAYS MUST BE DISALLOWED UNDER RULE THAT WAGE RATE EMPLOYEES ARE ENTITLED TO AN ORDINARY DAY'S PAY FOR HOLIDAYS IRRESPECTIVE OF WHETHER THEY WORK OR DO NOT WORK ON A HOLIDAY UNLESS AGREEMENT PROVIDES EXTRA PAY. THE OVERSEAS COMMAND DID NOT HAVE AUTHORITY TO PRESCRIBE REGULATION TO OBLIGATE U.S. IS ENCLOSED. WHICH IS SELF EXPLANATORY. PERTINENT PARTS THEREOF AND OF THE AVAILABLE RECORD ARE DISCUSSED BELOW. WHICH WERE WORKED BY DEPARTMENT OF THE AIR FORCE EMPLOYEES WHO WERE EXCUSED ADMINISTRATIVELY FROM WORK ON THE FRIDAY PRECEDING THE STATUTORY HOLIDAY FALLING ON A SATURDAY. THE REGULARLY SCHEDULED WORKWEEK FOR THE CLAIMANTS WAS 7 A.M.

B-160617, OCT. 12, 1967

COMPENSATION - HOLIDAYS - FOREIGN HOLIDAYS DECISION TO AFGE CONCERNING CLAIMS OF U.S. WAGE BOARD EMPLOYEES OVERSEAS FOR U.S. HOLIDAYS IN LIEU OF GERMAN HOLIDAYS. CLAIMS BY OVERSEAS WAGE BOARD EMPLOYEES FOR HOLIDAY PAY FOR WORK ON U.S. HOLIDAYS FOR 10 YEAR PERIOD WHEN GERMAN HOLIDAYS WERE SUBSTITUTED FOR U.S. HOLIDAYS MUST BE DISALLOWED UNDER RULE THAT WAGE RATE EMPLOYEES ARE ENTITLED TO AN ORDINARY DAY'S PAY FOR HOLIDAYS IRRESPECTIVE OF WHETHER THEY WORK OR DO NOT WORK ON A HOLIDAY UNLESS AGREEMENT PROVIDES EXTRA PAY. THE OVERSEAS COMMAND DID NOT HAVE AUTHORITY TO PRESCRIBE REGULATION TO OBLIGATE U.S. FOR EXTRA COMPENSATION IN ADDITION TO LOCAL HOLIDAYS THUS CREATING AN EXTRA HOLIDAY SYSTEM.

TO MR. JOHN F. GRINER, NATIONAL PRESIDENT:

WE REFER TO YOUR LETTERS OF JUNE 8, AND AUGUST 2, 1967, AND TO OUR LETTERS OF JUNE 14, AND AUGUST 7, 1967, TO YOU, CONCERNING THE JOINT CLAIM OF MESSRS. STEVE E. TIMKO, Z-2318580, AND JEROME W. MILEY, Z-2318581. COPY OF THEIR CLAIM DATED MARCH 31, 1966, TOGETHER WITH A COPY OF OUR CLAIMS DIVISION'S SETTLEMENT CERTIFICATE DATED NOVEMBER 30, 1966, ADDRESSED TO MR. TIMKO, IS ENCLOSED. THE FACTS AND CIRCUMSTANCES DISCUSSED THEREIN NEED NOT BE REPEATED HERE.

AS TO THE PRESENT MATTER WE ENCLOSE A COPY OF THE CLAIMANTS' LETTER DATED DECEMBER 8, 1966, WHICH IS SELF EXPLANATORY. THE REPORT WHICH WE REQUESTED FROM THE DEPARTMENT OF THE ARMY NOW HAS BEEN RECEIVED. PERTINENT PARTS THEREOF AND OF THE AVAILABLE RECORD ARE DISCUSSED BELOW.

ALSO, WE ENCLOSE A COPY OF OUR DECISION B-156989 DATED AUGUST 12, 1965, WHICH THE CLAIMANTS CITE AS A BASIS FOR FAVORABLE ACTION ON THEIR CLAIM. HOWEVER, WE POINT OUT THAT THE DECISION B-156989 CONCERNED REGULAR WORKWEEKS WHICH INCLUDED SATURDAYS, WHICH WERE WORKED BY DEPARTMENT OF THE AIR FORCE EMPLOYEES WHO WERE EXCUSED ADMINISTRATIVELY FROM WORK ON THE FRIDAY PRECEDING THE STATUTORY HOLIDAY FALLING ON A SATURDAY. THAT SITUATION AROSE UNDER THE DEPARTMENT OF THE AIR FORCE REGULATION 40-523, BUT SUCH A SITUATION DID NOT PREVAIL IN THIS CASE.

DURING THE PERIOD IN QUESTION HERE, THE REGULARLY SCHEDULED WORKWEEK FOR THE CLAIMANTS WAS 7 A.M. TO 4 P.M., MONDAY THROUGH FRIDAY. WHEN GERMAN HOLIDAYS FELL ON TUESDAY OR THURSDAY OF A WORKWEEK, THE MONDAY BEFORE OR THE FRIDAY AFTER A HOLIDAY WAS ALSO DESIGNATED A WORK-FREE DAY. THIS PRACTICE, NOW DISCONTINUED, WAS OBSERVED IN THE INTEREST OF OPERATIONAL CONVENIENCE. WHILE SATURDAYS AND SUNDAYS WERE NOT INCLUDED IN THE CLAIMANTS' SCHEDULED WORKDAYS, OCCASIONALLY THEY WORKED ON SATURDAYS TO COMPENSATE FOR THE EXTRA DAY OFF UNDER THIS PROCEDURE.

THE RECORDS NOW AVAILABLE SHOW THAT DURING THE PERIOD IN QUESTION THE COMMAND OF THE PUBLICATIONS AND TRAINING AIDS CENTER ISSUED A LIST ANNUALLY OF THE GERMAN HOLIDAYS AND LOCAL WORK-FREE DAYS WHICH UNITED STATES CITIZEN EMPLOYEES WERE TO OBSERVE IN ADDITION TO THE STATUTORY NEW YEAR, THANKSGIVING, AND CHRISTMAS HOLIDAYS. THIS LOCAL COMMAND'S PRACTICE GAVE TO UNITED STATES CITIZEN EMPLOYEES 10 TO 12 "HOLIDAYS" PLUS THE LOCAL WORK-FREE DAYS ON MONDAYS AND FRIDAYS MENTIONED ABOVE, IN LIEU OF THE 8 DAYS WHICH REPRESENT THE USUAL LEGAL UNITED STATES HOLIDAYS. THUS, IT APPEARS THAT SUCH EMPLOYEES ACTUALLY RECEIVED MORE TIME OFF THAN THEY WOULD HAVE RECEIVED HAD THEY BEEN RESTRICTED TO TIME OFF ONLY ON UNITED STATES HOLIDAYS.

HEADQUARTERS, TAUNUS DISTRICT, APO 09757, EXPLAINS THE OPERATIONAL CIRCUMSTANCES FOR THAT LOCAL PRACTICE, IN PERTINENT PART, AS FOLLOWS:

"2. THE REGULARLY SCHEDULED WORKWEEK OF ALL U.S. CITIZEN EMPLOYEES EITHER PRESENTLY OR FORMERLY EMPLOYED BY THIS ACTIVITY WAS ON A 40-HOUR PER WEEK BASIS. IN ORDER TO ABIDE BY THE THEN, YET CURRENT REGULATIONS PERTAINING TO THE 40-HOUR WORKWEEK, ASSIGNED PERSONNEL DID NOT WORK STRAIGHT 8-HOUR, 5-DAY WEEK, BUT STAYED WITHIN THE 40-HOUR PERIOD BY TAKING TIME OFF ON PREDETERMINED BASIS. THE ADJUSTMENT ACTION WAS NECESSARY DUE TO THE FACT THE ACTIVITY EMPLOYED APPROXIMATELY 350 LOCAL NATIONAL EMPLOYEES WHO RECEIVED OVERALL SUPERVISION FROM U.S. CITIZEN SUPERVISORS. THE WORKWEEK OF LOCAL NATIONALS DEPENDING ON CATEGORY (TARIFF), ORIGINALLY WAS A 48- HOUR WEEK. THROUGH THE YEARS THIS AMOUNT IN SOME CASES HAS BEEN REDUCED TO 40-HOURS. * * *

"3. DURING THE PERIOD IN QUESTION THE AG SUPPORT CENTERS' WORK WEEK, EVOLVED AROUND GERMAN HOLIDAYS. EXAMPLE: WHENEVER A GERMAN HOLIDAY FELL ON A TUESDAY OR THURSDAY OF A WORK WEEK, THE MONDAY BEFORE OR THE FRIDAY AFTER THE HOLIDAY WAS ALSO DESIGNATED A WORK FREE DAY. THIS POLICY PERMITTED THE AG SUPPORT CENTER TO KEEP IT'S UNPRODUCTIVE TIME (MAKE-READY AND SHUT DOWN OPERATIONS) IN PRINTING AT A MINIMUM LEVEL. UNLESS THIS TYPE OF ACTION WAS TAKEN AN UNUSUAL AMOUNT OF UNPRODUCTIVE TIME WAS REQUIRED TO TAKE INK FROM THE PRESSES OR RE-INK THEM AT THE BEGINNING OF THE NEXT WORK DAY. THIS GAVE THE LOCAL NATIONALS, AS WELL AS THE DEPARTMENT OF THE ARMY CIVILIANS ON BOARD DURING THE PERIOD OF 1959 THROUGH 1965 MANY FOUR (4) DAY WEEKENDS. THIS POLICY WAS READILY ACCEPTED BY ALL CONCERNED. IT AFFORDED THE EMPLOYEE THE GROUPING OF WORK FREE DAYS AND MANAGEMENT THE POSSIBILITY TO KEEP COSTS AT A MINIMUM. ANY TIME OFF UNDER THIS POLICY, FOR ALL CIVILIANS, WAS ALWAYS COVERED BY THE EMPLOYEES WORKING ON SATURDAYS ON A WORK AHEAD IS.'

FURTHER, THAT COMMAND STATED THAT COMPLETE OFFICIAL RECORDS ON ALL POINTS IN THE MATTER ARE NOT NOW AVAILABLE BECAUSE REGULATIONS HAVE REQUIRED DISPOSAL OF OLD RECORDS. IT IS EVIDENT, HOWEVER, THAT THE LOCAL PRACTICE OF SUBSTITUTING GERMAN HOLIDAYS AND OTHER WORK-FREE DAYS FOR UNITED STATES HOLIDAYS WAS FOLLOWED WITHOUT COMPLAINT FROM THE CLAIMANTS AND THE THREE OTHERS WHO SIGNED THE STATEMENT DATED FEBRUARY 11, 1966, FOR APPROXIMATELY 10 YEARS AFTER THE DATE THAT THEY ALLEGE THE PRACTICE BEGAN. NOTWITHSTANDING THEIR STATEMENT IN THEIR LETTER OF DECEMBER 8, 1966, THAT THEY DID NOT AGREE TO THIS "ILLEGAL POLICY," THEY PRESENTED NOTHING TO SHOW SUCH DISAGREEMENT, UNTIL FEBRUARY 11, 1966. NEITHER DID THEY SUBMIT A CLAIM FOR COMPENSATION FOR THE FIVE OTHER UNITED STATES HOLIDAYS UNTIL MARCH 31, 1966. ASIDE FROM THE APPLICABILITY OF THE DOCTRINE OF LACHES TO THEIR CLAIM, THE SUPREME COURT IN UNITED STATES V. BERGH, 352 U.S. 40, HELD REGARDING WAGE RATE EMPLOYEES (DAILY, HOURLY OR PIECE-WORK) THAT THE 1938 RESOLUTION, 5 U.S.C. 86A, NOW 5 U.S.C. 6104, PERMITS NO EXTRA HOLIDAY COMPENSATION WHEN SUCH EMPLOYEES ARE REQUIRED TO WORK ON THE HOLIDAYS NAMED IN THAT RESOLUTION (NOW SET OUT IN 5 U.S.C. 6103). MOREOVER, WE ARE NOT AWARE OF ANY WAGE AGREEMENT OR GOVERNING REGULATION OF THE DEPARTMENT OF THE ARMY WHICH WOULD HAVE GRANTED THE CLAIMANTS THE ADDITIONAL COMPENSATION THEY NOW CLAIM.

UNDER THE 1938 RESOLUTION AND THE BERGH DECISION OF THE SUPREME COURT, WE CONSISTENTLY HAVE HELD THAT WAGE RATE EMPLOYEES ARE ENTITLED TO ONLY AN ORDINARY DAY'S PAY FOR HOLIDAYS IRRESPECTIVE OF WHETHER THEY WORK OR DO NOT WORK ON A HOLIDAY UNLESS THERE IS IN EXISTENCE DURING THE INVOLVED PERIOD A WAGE AGREEMENT PROVIDING FOR EXTRA PAY FOR SUCH EMPLOYEES WHO ARE REQUIRED TO WORK ON A LEGAL HOLIDAY. SEE THE ENCLOSED COPY OF OUR DECISION B-159281 DATED JUNE 14, 1966.

THE LOCAL COMMAND HAD NO AUTHORITY TO PRESCRIBE A REGULATION OR INSTRUCTION CONTRARY TO LAW SO AS TO OBLIGATE THE UNITED STATES FOR PAYMENT OF EXTRA COMPENSATION--IN ADDITION TO THE LOCAL HOLIDAYS AND WORK- FREE DAYS DISCUSSED ABOVE--OR THEREBY TO CREATE SUCH AN EXTRA HOLIDAY SYSTEM INCIDENT TO ESTABLISHMENT OF A LAWFUL WAGE RATE SYSTEM FOR UNITED STATES CITIZEN EMPLOYEES OVERSEAS UNDER THAT COMMAND. THEREFORE, AS WE FIND NO COMPENSATION IS DUE MR. TIMKO OR MR. MILEY, AS CLAIMED BY THEM ON MARCH 31, 1966, THE DISALLOWANCE OF MR. TIMKO'S CLAIM IS SUSTAINED.