B-199207, OCTOBER 6, 1981, 61 COMP.GEN. 3

B-199207: Oct 6, 1981

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EMPLOYEE IS NOT ENTITLED TO 2 DAYS' ADDITIONAL HOLIDAY PAY FOR WORK ON SATURDAY BECAUSE MEANING OF TERM "HOLIDAY" IN CONTROLLING AGENCY REGULATION REQUIRES REFERENCE TO 5 U.S.C. 6103 TO DETERMINE ESTABLISHED LEGAL PUBLIC HOLIDAYS AND SECTION 6103(B)(1) PROVIDES THAT INSTEAD OF A HOLIDAY THAT OCCURS ON SATURDAY. THE FRIDAY IMMEDIATELY BEFORE IS A LEGAL PUBLIC HOLIDAY. WHICH WAS CONSIDERED A HOLIDAY BY EXECUTIVE ORDER FOR PURPOSES OF PAY AND LEAVE OF SPECIFIED FEDERAL EMPLOYEES. WE CONCLUDE FOR PURPOSES OF APPLYING THE SHIP INSPECTION OVERTIME PROVISIONS THAT DAYS WHICH ARE DECLARED TO BE HOLIDAYS FOR GOVERNMENT EMPLOYEES BY EXECUTIVE ORDER ARE NOT TO BE CONSIDERED HOLIDAYS WHICH WOULD ENTITLE THE EMPLOYEE TO THE SPECIAL PAY. 26 COMP.GEN. 848 (1947).

B-199207, OCTOBER 6, 1981, 61 COMP.GEN. 3

FEDERAL COMMUNICATIONS COMMISSION - SHIP RADIO INSPECTORS - HOLIDAY V. REGULAR OVERTIME COMPENSATION FEDERAL COMMUNICATIONS COMMISSION EMPLOYEE PERFORMED SHIP INSPECTION DUTIES ON SATURDAY, NOV. 11, 1978 (VETERANS DAY)-- A HOLIDAY. PURSUANT TO 5 U.S.C. 6103(B)(1) (1976), EMPLOYEE HAD RECEIVED FRIDAY, NOV. 10, 1978, AS A PAID HOLIDAY OFF. EMPLOYEE IS NOT ENTITLED TO 2 DAYS' ADDITIONAL HOLIDAY PAY FOR WORK ON SATURDAY BECAUSE MEANING OF TERM "HOLIDAY" IN CONTROLLING AGENCY REGULATION REQUIRES REFERENCE TO 5 U.S.C. 6103 TO DETERMINE ESTABLISHED LEGAL PUBLIC HOLIDAYS AND SECTION 6103(B)(1) PROVIDES THAT INSTEAD OF A HOLIDAY THAT OCCURS ON SATURDAY, THE FRIDAY IMMEDIATELY BEFORE IS A LEGAL PUBLIC HOLIDAY. HOLIDAYS - CREATED BY EXECUTIVE ORDER - INSPECTIONAL SERVICES - COMPENSATION RATE SHIP RADIO INSPECTORS FEDERAL COMMUNICATIONS COMMISSION EMPLOYEE PERFORMED SHIP INSPECTION DUTIES ON MONDAY, DEC. 24, 1979, WHICH WAS CONSIDERED A HOLIDAY BY EXECUTIVE ORDER FOR PURPOSES OF PAY AND LEAVE OF SPECIFIED FEDERAL EMPLOYEES. EXPRESS LIMITATION OF EXECUTIVE ORDER TO EXECUTIVE BRANCH EMPLOYEES PRECLUDES CONSIDERATION OF MONDAY, DEC. 24, 1979, AS A HOLIDAY WITHIN THE MEANING OF 47 C.F.R. 83.74(A)(4) (1979), AND 5 U.S.C. 6103, WHICH LIMIT THE TERM "HOLIDAY" TO GOVERNMENT RECOGNIZED LEGAL PUBLIC HOLIDAYS AND OTHER DESIGNATED NATIONAL HOLIDAYS. WE CONCLUDE FOR PURPOSES OF APPLYING THE SHIP INSPECTION OVERTIME PROVISIONS THAT DAYS WHICH ARE DECLARED TO BE HOLIDAYS FOR GOVERNMENT EMPLOYEES BY EXECUTIVE ORDER ARE NOT TO BE CONSIDERED HOLIDAYS WHICH WOULD ENTITLE THE EMPLOYEE TO THE SPECIAL PAY. 26 COMP.GEN. 848 (1947).

MATTER OF: DONALD W. BOGERT AND JOE E. COLEMAN - HOLIDAY PAY - FEDERAL COMMUNICATIONS COMMISSION - SHIP INSPECTION OVERTIME, OCTOBER 6, 1981:

MR. WAYNE B. LESHE, CHIEF ACCOUNTANT, FEDERAL COMMUNICATIONS COMMISSION, HAS REQUESTED AN ADVANCE DECISION CONCERNING TWO VOUCHERS. THE VOUCHERS INVOLVE PAYMENTS TO MR. DONALD W. BOGERT (VOUCHER NO. 7806) AND MR. JOE E. COLEMAN (VOUCHER NO. 7907) AS EMPLOYEES OF THE FEDERAL COMMUNICATIONS COMMISSION (FCC) FOR EXTRA COMPENSATION-- COMMONLY REFERRED TO AS "SHIP INSPECTION OVERTIME"-- FOR INSPECTION OF SHIPS IN ACCORDANCE WITH THE PROVISIONS OF THE COMMUNICATIONS ACT OF 1934, 47 U.S.C. 154(F)(3), AND FCC REGULATIONS SET OUT AT 47 C.F.R. 83.48 (1978), AND 47 C.F.R. 83.74 (1979).

DONALD W. BOGERT (VOUCHER NO. 7906)

MR. BOGERT, AN ENGINEER WITH THE FCC, WAS ORDERED TO PERFORM A SHIP INSPECTION OF A CERTAIN VESSEL ON SATURDAY, NOVEMBER 11, 1978, VETERANS DAY. MR. BOGERT ACCOMPLISHED THIS INSPECTION ON THE APPOINTED DAY AT BALTIMORE, MARYLAND, BETWEEN THE HOURS OF 1 P.M. AND 4:30 P.M. ON NOVEMBER 13, 1978, MR. BOGERT SUBMITTED A COLLECTION BILL TO THE VESSEL'S OWNER FOR THE SHIP INSPECTION IN AN AMOUNT EQUAL TO 2 DAYS' PAY. AT THE SAME TIME, MR. BOGERT SUBMITTED A CLAIM TO HIS AGENCY FOR 2 DAYS' PAY FOR PERFORMING A SHIP INSPECTION ON A HOLIDAY IN ACCORDANCE WITH SECTION 83.48(A)(4) OF TITLE 47, CODE OF FEDERAL REGULATIONS (1978).

ON DECEMBER 6, 1978, THE CHIEF OF THE ENFORCEMENT DIVISION OF THE FIELD OPERATIONS BUREAU (MR. BOGERT'S SUPERVISOR) REJECTED THE COLLECTION BILL AND CLAIMS VOUCHER. THIS ACTION WAS BASED ON A FINDING THAT, WHILE NOVEMBER 11, 1978, WAS A "HOLIDAY" WITHIN THE MEANING OF 47 U.S.C. 154(F)(3), THE PROVISIONS OF 5 U.S.C. 6103(B) REQUIRE THAT A DESIGNATED HOLIDAY THAT FALLS ON A SATURDAY (SUCH AS THE VETERANS DAY IN QUESTION) BE GIVEN TO FEDERAL EMPLOYEES ON THE PRECEDING FRIDAY. THUS, BECAUSE MR. BOGERT RECEIVED THAT PRECEDING FRIDAY AS A HOLIDAY WITH PAY HE WAS NOT ENTITLED TO CLAIM SATURDAY AS A DOUBLE HOLIDAY. THE DIVISION CHIEF INSTRUCTED THE ENGINEER-IN-CHARGE OF THE BALTIMORE OFFICE TO SUBMIT A REQUEST FOR REGULAR OVERTIME FOR MR. BOGERT FOR THE HOURS WORKED ON NOVEMBER 11, 1978.

MR. BOGERT DID NOT ACCEPT THIS INTERPRETATION OF THE "SHIP INSPECTION OVERTIME" PROVISIONS OF 47 C.F.R. 83.48(A)(4) (1978). FOLLOWING SUBSEQUENT REVIEW AND REJECTION OF HIS CLAIM WITHIN HIS AGENCY, MR. BOGERT'S CONTENTION REMAINS THAT HE PERFORMED THE SHIP INSPECTION DUTIES ON NOVEMBER 11, AND THAT DATE IS A NATIONAL HOLIDAY SPECIFICALLY LISTED IN SECTION 83.48(A)(4) OF THE 1978 EDITION OF TITLE 47, CODE OF FEDERAL REGULATIONS, AND THEREFORE 2 DAYS' PAY IS THE PROPER CHARGE FOR THE HOLIDAY WORK. ALTHOUGH MR. BOGERT'S INTERPRETATION IS ARGUABLE, WE CONCLUDE THAT IT IS NOT MERITORIOUS.

UNDER 47 U.S.C. 154(F)(3) AND 47 C.F.R. 83.48(A)(9) (1978) (APPLICABLE AT THE TIME MR. BOGERT PERFORMED THE SHIP INSPECTION), FOR ANY AUTHORIZED SERVICES PERFORMED ON SUNDAYS AND HOLIDAYS, TOTALING NOT MORE THAN 8 HOURS, EXTRA COMPENSATION IS PAYABLE EQUIVALENT TO 2 DAYS' PAY IN ADDITION TO ANY REGULAR COMPENSATION FOR SUCH DAYS. THE TERM "HOLIDAY" IS EXPLAINED IN 47 C.F.R. 83.48(A)(4) AS FOLLOWS:

* * * THE TERM "HOLIDAY" SHALL INCLUDE ONLY NATIONAL HOLIDAYS, VIZ. JANUARY 1, FEBRUARY 22, MAY 30, JULY 4, THE FIRST MONDAY IN SEPTEMBER, NOVEMBER 11, THANKSGIVING DAY (WHEN DESIGNATED BY THE PRESIDENT), DECEMBER 25, AND SUCH OTHER DAYS AS MAY BE DESIGNATED NATIONAL HOLIDAYS BY THE PRESIDENT OR CONGRESS.

IN OUR OPINION, THE TERM "HOLIDAY" AS USED IN 47 U.S.C. 154(F)(3) AND THE IMPLEMENTING REGULATION QUOTED ABOVE MUST BE CONSTRUED IN THE LIGHT OF THE PROVISIONS OF 5 U.S.C. 6103 (1976) WHICH SPECIFICALLY ESTABLISHES LEGAL PUBLIC HOLIDAYS. SECTION 6103(B) SPECIFICALLY PROVIDES THAT, FOR PURPOSES OF STATUTES RELATING TO PAY AND LEAVE OF FEDERAL EMPLOYEES, THE FOLLOWING RULES APPLY:

(1) INSTEAD OF A HOLIDAY THAT OCCURS ON A SATURDAY, THE FRIDAY IMMEDIATELY BEFORE IS A LEGAL PUBLIC HOLIDAY FOR--

(A) EMPLOYEES WHOSE BASIC WORKWEEK IS MONDAY THROUGH FRIDAY * * * .

SINCE SUBSECTION (B)(1) ESTABLISHES THAT INSTEAD OF HOLIDAYS-- INCLUDING NOVEMBER 11-- THAT OCCUR ON A SATURDAY, THE FRIDAY BEFORE IS A LEGAL PUBLIC HOLIDAY, IT FOLLOWS THAT MR. BOGERT WAS ENTITLED TO AND IN FACT RECEIVED A PAID HOLIDAY ON NOVEMBER 10, 1978. THEREFORE, THE HOURS OF WORK MR. BOGERT PERFORMED ON SATURDAY, NOVEMBER 11, 1978, ARE COMPENSABLE AS REGULAR OVERTIME.

JOE E. COLEMAN (VOUCHER NO. 7907)

MR. COLEMAN WAS ORDERED TO PERFORM A SHIP INSPECTION OF A CERTAIN VESSEL ON MONDAY, DECEMBER 24, 1979. MR. COLEMAN ACCOMPLISHED THIS INSPECTION ON THE APPOINTED DAY AT PORT ARTHUR, TEXAS, BETWEEN THE HOURS OF 11 A.M. AND 4 P.M. ON DECEMBER 31, 1979, MR. COLEMAN SUBMITTED A COLLECTION BILL TO THE VESSEL'S OWNERS FOR THE SHIP INSPECTION IN AN AMOUNT EQUAL TO 2 DAYS' PAY. AT THE SAME TIME, MR. COLEMAN SUBMITTED A CLAIM TO HIS AGENCY FOR 2 ADDITIONAL DAYS' PAY FOR PERFORMING A SHIP INSPECTION ON A HOLIDAY IN ACCORDANCE WITH 47 C.F.R. 83.74(A)(4) (1979). THE AGENCY HAS FORWARDED MR. COLEMAN'S VOUCHER FOR OUR CONSIDERATION OF THE PROPRIETY OF COMPENSATING MR. COLEMAN FOR 2 ADDITIONAL DAYS' PAY FOR WORK PERFORMED ON THAT DAY.

BY EXECUTIVE ORDER ALL EXECUTIVE DEPARTMENTS AND AGENCIES WERE CLOSED AND EMPLOYEES, OTHER THAN THOSE REQUIRED TO BE AT THEIR POSTS FOR REASONS OF NATIONAL SECURITY OR OTHER PUBLIC REASONS, WERE EXCUSED FROM DUTY ON MONDAY, DECEMBER 24, 1979. THE EXECUTIVE ORDER ALSO PROVIDED THAT DECEMBER 24 WOULD BE CONSIDERED A HOLIDAY FOR THE PURPOSES OF THE PAY AND LEAVE OF EMPLOYEES OF THE UNITED STATES. THUS, BY THE VERY TERMS OF THE ORDER, THE HOLIDAY WAS LIMITED ONLY TO A SPECIFIC GROUP OF FEDERAL EMPLOYEES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. THIS LIMITATION PRECLUDES CONSIDERATION OF MONDAY, DECEMBER 24, 1979, AS A HOLIDAY WITHIN THE MEANING OF THE SHIP INSPECTION HOLIDAY PAY RULE CONTAINED AT 47 C.F.R. 83.74(A)(9) (1979).

UNDER 47 C.F.R. 83.74(A)(9)(1979), WHICH IMPLEMENTS THE "SHIP INSPECTION OVERTIME" PROVISIONS OF 47 U.S.C. 154(F)(3), FOR ANY SERVICES PERFORMED ON A HOLIDAY, TOTALING NOT MORE THAN 8 HOURS, EXTRA COMPENSATION IS PAYABLE EQUIVALENT TO 2 DAYS' PAY IN ADDITION TO REGULAR COMPENSATION FOR SUCH DAYS. THE TERM "HOLIDAY" IS EXPLAINED IN SECTION 83.74(A)(4) OF THE 1979 EDITION OF TITLE 47, CODE OF FEDERAL REGULATIONS, AS FOLLOWS:

* * * THE TERM HOLIDAY SHALL INCLUDE ONLY GOVERNMENT RECOGNIZED HOLIDAYS, AND SUCH OTHER DAYS AS MAY BE DESIGNATED NATIONAL HOLIDAYS BY THE PRESIDENT OR CONGRESS.

AS WE NOTED IN OUR CONCLUSION IN MR. BOGERT'S CASE, THIS EXPLANATION OF THE TERM "HOLIDAY" MAKES THE PROVISIONS OF 5 U.S.C. 6103 INDISPENSABLE TO THE PROPER UNDERSTANDING OF QUALIFYING HOLIDAYS UNDER THE REGULATION. THINK IT IS CLEAR THAT THE "GOVERNMENT RECOGNIZED HOLIDAYS" PROVIDED FOR IN THE REGULATION REFER TO THE "LEGAL PUBLIC HOLIDAYS" ESTABLISHED IN 5 U.S.C. 6103(A); AND, THAT THE PROVISION FOR "SUCH OTHER DAYS AS MAY BE DESIGNATED NATIONAL HOLIDAYS" CLEARLY CONTEMPLATES THE ESTABLISHMENT OF A HOLIDAY FOR ALL OF THE PUBLIC AND NOT JUST A SPECIFIED GROUP OF FEDERAL EMPLOYEES.

ACCORDINGLY, WE CONCLUDE HERE AS WE DID IN B-153107, OCTOBER 30, 1969, FOR PURPOSES OF APPLYING THE SIMILAR CUSTOMS OVERTIME LAW, 19 U.S.C. 267, 19 U.S.C. 1451(1976), THAT THE SHIP INSPECTION OVERTIME PROVISIONS OF 47 U.S.C. 154(F)(3), AND 47 C.F.R. 83.74(A)(1979), DO NOT APPLY TO HOLIDAYS ESTABLISHED BY EXECUTIVE ORDER FOR FEDERAL EMPLOYEES BUT ONLY TO "THOSE HOLIDAYS SPECIFICALLY SET OUT, WHICH DAYS GENERALLY ARE UNDERSTOOD NOT ONLY BY GOVERNMENT EMPLOYEES BUT BY THE PUBLIC TO BE HOLIDAYS." COMP.GEN. 848 AT 852(1947). AS A RESULT, MR. COLEMAN IS NOT ENTITLED TO COMPENSATION UNDER THE HOLIDAY PAY PROVISION OF 47 C.F.R. 83.74(A)(9)(1979) FOR SHIP INSPECTION SERVICES PERFORMED ON MONDAY, DECEMBER 24, 1979. ANY PAYMENT OF HOLIDAY COMPENSATION FOR THAT DATE MUST BE IN ACCORDANCE WITH 5 U.S.C. 5546(B)(1976).

ADDITIONAL INQUIRIES FORMULATED BY THE CERTIFYING OFFICER ARE DEFERRED FOR FUTURE CONSIDERATION AS THEY DO NOT PRESENT QUESTIONS OF LAW INVOLVED IN THE PAYMENT OF THESE VOUCHERS IN ACCORDANCE WITH 31 U.S.C. 82D(1976). THE VOUCHERS ARE RETURNED FOR DISPOSITION IN ACCORDANCE WITH THE ABOVE.