B-169568, MAY 26, 1970

B-169568: May 26, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

L. JOHNSON: THIS IS IN REPLY TO YOUR LETTER OF APRIL 13. YOUR STATION WAS CLOSED COMPLETELY FOR NORMAL OPERATIONS FOR THE WORKWEEK DECEMBER 22 TO 26. ALL EMPLOYEES WERE NOTIFIED WELL IN ADVANCE OF THE PLANS TO CLOSE THE STATION AND WERE ADVISED TO USE THEIR LEAVE IN SUCH A MANNER THAT THEY WOULD HAVE 32 HOURS OF ANNUAL LEAVE AVAILABLE FOR USE ON THE 4 WORKDAYS. APPROVAL OF ANNUAL LEAVE FOR THE PERIOD INVOLVED WAS AUTOMATIC PROVIDED THE INDIVIDUAL EMPLOYEE HAD SUFFICIENT LEAVE ACCRUED. KELLEY WAS ABSENT FOR THE WEEK DURING WHICH THE PLANT WAS CLOSED AND ALSO THE FOLLOWING WEEK. WHEN HE REPORTED FOR DUTY HE STATED THAT HE THOUGHT THE PLANT WAS TO BE CLOSED FOR TWO WEEKS. SINCE ALL EMPLOYEES HAD BEEN NOTIFIED THAT THE PLANT WAS TO BE CLOSED ONLY ONE WEEK.

B-169568, MAY 26, 1970

TO LIEUTENANT COMMANDER R. L. JOHNSON:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 13, 1970, REFERENCE 02C:GJS 12770, REQUESTING OUR DECISION AS TO THE PAY ENTITLEMENT OF MR. MICHAEL KELLEY, AN EMPLOYEE OF YOUR AGENCY, FOR DECEMBER 25 AND 26, 1969, UNDER THE CIRCUMSTANCES STATED BELOW.

YOUR STATION WAS CLOSED COMPLETELY FOR NORMAL OPERATIONS FOR THE WORKWEEK DECEMBER 22 TO 26, 1969, WHICH INCLUDED THE HOLIDAY ON DECEMBER 25, 1969. ALL EMPLOYEES WERE NOTIFIED WELL IN ADVANCE OF THE PLANS TO CLOSE THE STATION AND WERE ADVISED TO USE THEIR LEAVE IN SUCH A MANNER THAT THEY WOULD HAVE 32 HOURS OF ANNUAL LEAVE AVAILABLE FOR USE ON THE 4 WORKDAYS. APPROVAL OF ANNUAL LEAVE FOR THE PERIOD INVOLVED WAS AUTOMATIC PROVIDED THE INDIVIDUAL EMPLOYEE HAD SUFFICIENT LEAVE ACCRUED. MR. KELLEY WAS ABSENT FOR THE WEEK DURING WHICH THE PLANT WAS CLOSED AND ALSO THE FOLLOWING WEEK. WHEN HE REPORTED FOR DUTY HE STATED THAT HE THOUGHT THE PLANT WAS TO BE CLOSED FOR TWO WEEKS. SINCE ALL EMPLOYEES HAD BEEN NOTIFIED THAT THE PLANT WAS TO BE CLOSED ONLY ONE WEEK, MR. KELLEY WAS CHARGED WITH ABSENCE WITHOUT LEAVE FOR THE SECOND WEEK. AFTER THE BEGINNING OF THE PLANT SHUTDOWN THE PRESIDENT OF THE UNITED STATES DECLARED DECEMBER 26, 1969, A HOLIDAY. SECTION S1-5D (4), SUBCHAPTER S1, CMMI 550.S1, PROVIDES AS FOLLOWS:

"(4) AN EMPLOYEE WILL NOT RECEIVE PAY FOR A HOLIDAY OCCURRING EITHER IMMEDIATELY BEFORE OR IMMEDIATELY AFTER AN ABSENCE WITHOUT PAY (UNAUTHORIZED ABSENCE). IN SUCH CASE, THE EMPLOYEE IS CONSIDERED TO BE IN A NONPAY STATUS FOR THE ENTIRE PERIOD OF HIS ABSENCE, INCLUDING THE HOLIDAY." IN ACCORDANCE WITH THE REGULATION MR. KELLEY WAS DENIED PAY FOR DECEMBER 25 AND 26, 1969. MR. KELLEY CONTENDS THAT SINCE ANNUAL LEAVE FOR DECEMBER 26 HAD BEEN APPROVED BEFORE IT WAS DECLARED A HOLIDAY AND HE WAS NOT AWARE THAT THE HOLIDAY WAS DECLARED, HE SHOULD BE ALLOWED TO USE ANNUAL LEAVE ON DECEMBER 26. YOU ASK WHETHER MR. KELLEY IS ENTITLED TO PAY FOR EITHER DECEMBER 25 OR 26, AND WHETHER THERE SHOULD BE A CHARGE TO ANNUAL LEAVE FOR DECEMBER 26.

THE HEAD OF A DEPARTMENT OR AGENCY MAY REQUIRE THE SERVICES OF EMPLOYEES ON A HOLIDAY IN CASES OF NECESSITY OR EMERGENCY. THE REGULATION INVOLVED IS APPARENTLY BASED ON A PRESUMPTION THAT WHEN AN EMPLOYEE ABSENTS HIMSELF WITHOUT LEAVE FOLLOWING A HOLIDAY, HE WOULD NOT HAVE BEEN AVAILABLE FOR WORK ON THE HOLIDAY IF HIS SERVICES HAD BEEN REQUIRED. IN THIS CASE THERE CAN BE NO SUCH PRESUMPTION SINCE MR. KELLEY'S STATION WAS CLOSED FOR NORMAL OPERATIONS FOR THE WORKWEEK OF DECEMBER 22 TO 26, 1969, AND ANNUAL LEAVE HAD BEEN APPROVED FOR THIS PERIOD. THEREFORE, THE REGULATION IS INAPPLICABLE.

EXECUTIVE ORDER NO. 11503, DECEMBER 23, 1969, PROVIDES THAT DECEMBER 26, 1969, SHALL BE CONSIDERED A HOLIDAY WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10358 OF JUNE 9, 1952, AS AMENDED, AND OF ALL STATUTES SO FAR AS THEY RELATE TO THE COMPENSATION AND LEAVE OF EMPLOYEES OF THE UNITED STATES. UNDER 5 U.S.C. 6302 (A) ANNUAL LEAVE IS NOT CHARGED FOR HOLIDAYS ESTABLISHED BY FEDERAL STATUTE OR EXECUTIVE ORDER. SINCE DECEMBER 26 WAS DECLARED A HOLIDAY BY EXECUTIVE ORDER, MR. KELLEY MAY NOT BE CHARGED ANNUAL LEAVE FOR ABSENCE ON THAT DAY.

IN VIEW OF THE ABOVE AND SINCE THERE WAS APPROVED LEAVE OF ABSENCE FOR THE PERIOD DECEMBER 22 TO 26, 1969, MR. KELLEY SHOULD BE PAID FOR DECEMBER 25 AND 26, 1969.