B-181985, OCT 17, 1974

B-181985: Oct 17, 1974

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TURNER - PERMIUM AND GRATUITY PAY FOR HOLIDAYS: THIS ACTION IS A REQUEST FOR RECONSIDERATION OF SETTLEMENT OF APRIL 29. WAS EMPLOYED AS AN ELECTRICAL WELDER IN THE NORFOLK NAVAL SHIPYARD. THERE WAS NO EMPLOYMENT AGREEMENT COVERING PLAINTIFF'S WAGE SCHEDULE. PLAINTIFF WAS REQUIRED TO WORK ON 4 HOLIDAYS IN 1945 FOR WHICH HE WAS PAID THE REGULAR PER DIEM WAGES. PER DIEM EMPLOYEES OF THE NAVY WERE NOT ENTITLED TO AN EXTRA DAY'S COMPENSATION FOR EACH HOLIDAY WORKED DURING THE YEAR 1945. THE EFFECT OF WHICH WAS TO PERMIT ONLY STRAIGHT PAY WHEN A PER DIEM EMPLOYEE WAS REQUIRED TO WORK ON A HOLIDAY. IT WAS HELD THAT THE 1938 RESOLUTION REPEALED A JOINT RESOLUTION OF JANUARY 6. IN VIEW OF THE FACT THAT THERE WAS NO EMPLOYMENT AGREEMENT IN EFFECT GRANTING TO EMPLOYEES OF MR.

B-181985, OCT 17, 1974

CLAIM OF EMPLOYEE FOR PAYMENT OF PREMIUM AND GRATUITY PAY ALLEGED TO BE DUE FOR WORK PERFORMED ON VARIOUS HOLIDAYS AS PER DIEM EMPLOYEE OF NAVY DEPARTMENT CANNOT BE ALLOWED, SINCE SUPREME COURT, IN UNITED STATES V. BERGH, 352 U.S. 40(1956), HAS DISALLOWED SUCH ADDITIONAL COMPENSATION IN ABSENCE OF VALID EMPLOYMENT CONTRACT.

LUTHER A. TURNER - PERMIUM AND GRATUITY PAY FOR HOLIDAYS:

THIS ACTION IS A REQUEST FOR RECONSIDERATION OF SETTLEMENT OF APRIL 29, 1952, BY THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE, WHICH DISALLOWED THE CLAIM OF MR. LUTHER A. TURNER, AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, FOR PREMIUM AND GRATUITY PAY FOR SERVICES RENDERED ON LEGAL HOLIDAYS FROM JANUARY 1, 1942, THROUGH SEPTEMBER 3, 1945, AT THE NEW YORK NAVAL SHIPYARD, BROOKLYN, NEW YORK.

AS PREVIOUSLY NOTED IN THE SETTLEMENT OF APRIL 29, 1952, DENYING MR. TURNER'S CLAIM, THE SUPREME COURT IN UNITED STATES V. KELLY, 342 U.S. 193 (1952), ALLOWED ADDITIONAL COMPENSATION FOR SERVICES RENDERED ON CERTAIN HOLIDAYS BY A PER DIEM EMPLOYEE OF THE GOVERNMENT PRINTING OFFICE ON THE BASIS OF A "WAGE AGREEMENT" WHICH AUTHORIZED PAYMENT OF PREMIUM AND GRATUITY PAY FOR SERVICES RENDERED ON LEGAL HOLIDAYS AND SPECIAL HOLIDAYS DECLARED BY EXECUTIVE ORDER.

ON NOVEMBER 19, 1956, THE SUPREME COURT DISTINGUISHED THE KELLY DECISION IN THE CASE OF UNITED STATES V. BERGH, 352 U.S. 40. PLAINTIFF BERGH, A CIVILIAN PER DIEM EMPLOYEE OF THE NAVY DEPARTMENT, WAS EMPLOYED AS AN ELECTRICAL WELDER IN THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA. THERE WAS NO EMPLOYMENT AGREEMENT COVERING PLAINTIFF'S WAGE SCHEDULE. PURSUANT TO DIRECTIVES OF THE SECRETARY OF THE NAVY, PLAINTIFF WAS REQUIRED TO WORK ON 4 HOLIDAYS IN 1945 FOR WHICH HE WAS PAID THE REGULAR PER DIEM WAGES. IN DENYING PLAINTIFF'S CLAIM FOR AN EXTRA DAY'S CONPENSATION FOR EACH HOLIDAY WORKED, THE COURT HELD THAT IN THE ABSENCE OF A VALID EMPLOYMENT AGREEMENT TO THE CONTRARY, PER DIEM EMPLOYEES OF THE NAVY WERE NOT ENTITLED TO AN EXTRA DAY'S COMPENSATION FOR EACH HOLIDAY WORKED DURING THE YEAR 1945. THE COURT BASED ITS DECISION ON A JOINT RESOLUTION OF JUNE 29, 1938, 52 STAT. 1246, THE EFFECT OF WHICH WAS TO PERMIT ONLY STRAIGHT PAY WHEN A PER DIEM EMPLOYEE WAS REQUIRED TO WORK ON A HOLIDAY. IT WAS HELD THAT THE 1938 RESOLUTION REPEALED A JOINT RESOLUTION OF JANUARY 6, 1885, 23 STAT. 516, WHICH HAD PROVIDED FOR DOUBLE PAY FOR EACH HOLIDAY WORKED.

IN VIEW OF THE FACT THAT THERE WAS NO EMPLOYMENT AGREEMENT IN EFFECT GRANTING TO EMPLOYEES OF MR. TURNER'S CLASS PREMIUM AND GRATUITY PAY FOR WORK PERFORMED ON HOLIDAYS DURING THE PERIOD IN QUESTION, HIS SITUATION FALLS SQUARELY WITHIN UNITED STATES V. BERGH, SUPRA. SEE B 138693, FEBRUARY 26, 1959.

IN LIGHT OF THE FOREGOING, THE ACTION OF THE TRANSPORTATION AND CLAIMS DIVISION IN DISALLOWING THE CLAIM IN QUESTION MUST BE SUSTAINED.