B-64573, MARCH 28, 1947, 26 COMP. GEN. 708

B-64573: Mar 28, 1947

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WHO WERE RELIEVED OR PREVENTED FROM WORKING ON CHRISTMAS DAY. TO THE SAME PAY FOR THE HOLIDAY AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK OF 15 HOURS IS PERFORMED. 1947: REFERENCE IS MADE TO YOUR LETTER OF MARCH 11. AS FOLLOWS: THE NAVY DEPARTMENT HAS UNDER CONSIDERATION CERTAIN QUESTIONS RELATING TO THE PAYMENT OF PER DIEM EMPLOYEES WHO WERE RELIEVED OR PREVENTED FROM WORKING DURING THEIR SHIFT ON CHRISTMAS DAY. THERE IS INVOLVED IN THE CONSIDERATION OF THESE QUESTIONS THE FURTHER QUESTIONS OF THE AUTHORITY TO ESTABLISH A WORK WEEK OF 15 HOURS A DAY. IN THE EVENT SUCH A WORK-WEEK WAS AUTHORIZED OR IN THE EVENT SUCH A WORK-WEEK WAS NOT AUTHORIZED. WHOSE REGULAR TOUR OF DUTY IS 15 HOURS DAILY FROM 6:00 A.M.

B-64573, MARCH 28, 1947, 26 COMP. GEN. 708

HOLIDAY COMPENSATION - SHIP MAINTENANCE MECHANICS ONLY IF THE TERMS OF THE APPOINTMENTS OF SHIP MAINTENANCE MECHANICS COMPENSATED ON A PER DIEM BASIS FOR A 15-HOUR DAILY TOUR OF DUTY, THREE DAYS A WEEK, BE SUCH AS TO CONSTITUTE THEM "REGULAR EMPLOYEES" FOR LEAVE PURPOSES WOULD SUCH EMPLOYEES, WHO WERE RELIEVED OR PREVENTED FROM WORKING ON CHRISTMAS DAY, 1946, SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY, BE ENTITLED UNDER THE PER DIEM, ETC., EMPLOYEE HOLIDAY PAY STATUTE OF JUNE 29, 1938, TO THE SAME PAY FOR THE HOLIDAY AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK OF 15 HOURS IS PERFORMED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MARCH 28, 1947:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1947 (1JAG:II:LCM: EO), AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION CERTAIN QUESTIONS RELATING TO THE PAYMENT OF PER DIEM EMPLOYEES WHO WERE RELIEVED OR PREVENTED FROM WORKING DURING THEIR SHIFT ON CHRISTMAS DAY, 25 DECEMBER 1946. THERE IS INVOLVED IN THE CONSIDERATION OF THESE QUESTIONS THE FURTHER QUESTIONS OF THE AUTHORITY TO ESTABLISH A WORK WEEK OF 15 HOURS A DAY, THREE DAYS A WEEK, AND OF THE NUMBER OF HOURS FOR WHICH THESE EMPLOYEES SHOULD BE PAID FOR CHRISTMAS DAY AND AT WHAT RATE, IN THE EVENT SUCH A WORK-WEEK WAS AUTHORIZED OR IN THE EVENT SUCH A WORK-WEEK WAS NOT AUTHORIZED.

THE ABOVE RESOLVES OUT OF THE SITUATION WHERE A SHIP MAINTENANCE MECHANIC, WHOSE REGULAR TOUR OF DUTY IS 15 HOURS DAILY FROM 6:00 A.M. TO 9:00 P.M. MONDAY, WEDNESDAY, AND FRIDAY, WAS EXCUSED FROM WORK ON WEDNESDAY, 25 DECEMBER 1946, A HOLIDAY. SHOULD THIS MECHANIC BE CREDITED WITH 15 HOURS PAY SINCE HE WAS RELIEVED OR PREVENTED FROM WORKING THIS NUMBER OF HOURS BECAUSE OF THE OCCURRENCE OF A HOLIDAY?

THE PERSONNEL INVOLVED ARE CERTAIN SHIP MAINTENANCE MECHANICS EMPLOYED IN FIELD ACTIVITIES OF THE NAVY DEPARTMENT. THESE EMPLOYEES ARE ON A PER DIEM BASIS AND ARE ASSIGNED TO DUTY ABOARD DECOMMISSIONED VESSELS FOR THE PURPOSE OF PERFORMING COMBINED SECURITY AND MAINTENANCE DUTIES. THEY WORK ON BOARD SHIPS OF ALL SIZES AND OF VARIED CONSTRUCTION, EITHER TIED UP ALONGSIDE A PIER, ANCHORED IN THE STREAM OR AT ISOLATED BERTHING SITES.

AS BEARING UPON THE NECESSITY FOR ESTABLISHING THE WORK-WEEK ABOVE DESCRIBED, IT IS NOTED THAT THESE EMPLOYEES ARE RESPONSIBLE FOR THE SAFETY, MAINTENANCE AND PRESERVATION OF ONE OR MORE SHIPS OF VARIED CONSTRUCTION AND TONNAGE DECLARED SURPLUS FOLLOWING RELEASE FROM NAVAL COMMISSIONED DUTY AND UNTIL ACTUAL DISPOSITION IS ACCOMPLISHED. INDEPENDENTLY OR UNDER GENERAL SUPERVISION THESE EMPLOYEES PERFORM A VARIETY OF DUTIES SUCH AS PREVENTING UNAUTHORIZED PERSONS FROM COMING ABOARD OR LOITERING ABOUT THE SHIP. THEY KEEP ALERT FOR EVIDENCE OF FIRE OR FIRE POTENTIALITIES AND ELIMINATE THE HAZARD.

THEY TAKE DAILY BILGE SOUNDINGS AND PREVENT FLOODING BY OPERATING HAND OR POWER DRIVEN PUMPS, REPAIRING LEAKS, REPACKING SEALS AND TIGHTENING JOINTS. THEY PREVENT DETERIORATION BY CHIPPING AND PAINTING RUSTED SURFACES AND GREASING EXPOSED METAL PARTS. THEY CHECK THE CONDITION OF AND TEND MOORING GEAR AND GROUND TACKLE. THEY MAINTAIN AND SET RIDING AND ANCHOR LIGHTS IN CONFORMANCE WITH LOCAL PORT NAVIGATION RULES.

THEY TEND AND OPERATE SMALL AUXILIARY STEAM AND ELECTRICAL APPARATUS SUCH AS DEHUMIDIFICATION UNITS AND REMOVE EXCESSIVE ACCUMULATION OF ICE AND SNOW. THEY MAKE EMERGENCY REPAIRS OF LEAKS AND BREAKS IN PIPE LINES BY CUTTING THREADING AND REPLACING PIPE SECTIONS. THEY REPLACE DAMAGED WOOD- WORK, IF NECESSARY.

THEY MAINTAIN WATERTIGHT INTEGRITY BY KEEPING WATER TIGHT CLOSURES IN WORKING ORDER AT ALL TIMES AND PREVENT INTERIOR FLOODING BY CLOSING OFF WATERTIGHT SECTIONS IN CASE OF MAJOR HULL DAMAGES.

THEY MAKE PERIODIC INSPECTIONS OF COMPARTMENTS AND KEEP HOLDS AIRED AND FREE FROM VERMIN. THEY OPERATE SHIP TO SHORE COMMUNICATION SYSTEMS WHEN AVAILABLE AND KEEP NECESSARY RECORDS SUCH AS THE DAILY CHANGE IN OVERALL WEIGHT, REPAIRS MADE, SUPPLIES USED, ETC.

IN SOME INSTANCES THE BERTHING SITES OF LAID-UP VESSELS ARE LOCATED IN ISOLATED AREAS AND THE SHIP MAINTENANCE MECHANICS HAVE TO BE FERRIED TO AND FROM THEIR JOBS. UNLESS AN EMERGENCY ARISES ABOARD A VESSEL, THE DUTIES INVOLVED ARE NOT ARDUOUS AND IT IS OF ADVANTAGE BOTH TO THE GOVERNMENT AND TO THE EMPLOYEES TO SO ARRANGE WORKING HOURS THAT THEY PERFORM PRACTICALLY TWO DAYS WORK IN ONE CALENDAR DAY.

IN THE ABSENCE OF ANY LAW OR REGULATION TO THE CONTRARY, THERE APPEARS TO BE NO OBJECTION TO WORKING PER DIEM EMPLOYEES 15 HOURS DAILY ON EVERY OTHER DAY. ATTENTION IS ALSO INVITED TO THE FACT THAT THE EIGHT-HOUR LAW IS SUSPENDED DURING THE PERIOD OF THE NATIONAL EMERGENCY.

THE FOLLOWING SUB-PARAGRAPHS ARE QUOTED FROM NAVAL CIVILIAN PERSONNEL INSTRUCTIONS 85.2-3 REVISION I AS AMENDED, REGARDING HOURS OF WORK FOR PER DIEM EMPLOYEES:

"B. REGULAR WORKDAY.--- THE REGULAR WORKDAY IS 8 HOURS FOR ALL PER DIEM EMPLOYEES EXCEPT THOSE WHO ARE ON AN INTERMITTENT, IRREGULAR, OR PART-TIME BASIS.

"C. TOUR OF DUTY.--- THE REGULAR TOUR OF DUTY IS 5 DAYS OF 8 HOURS EACH DURING WHICH AN INDIVIDUAL EMPLOYEE IS REQUIRED TO WORK AND FOR WHICH BASIC COMPENSATION IS PAYABLE.

"/1) FOR NORMAL OPERATIONS, THE REGULAR TOUR OF DUTY IS MONDAY TO FRIDAY INCLUSIVE.

"E. ADMINISTRATIVE WORKDAY.--- THE ADMINISTRATIVE WORKDAY IS THE NUMBER OF HOURS THAT AN INDIVIDUAL EMPLOYEE, OR GROUP OF EMPLOYEES, IS REQUIRED TO WORK BY PROPER ADMINISTRATIVE ORDER.

"/1) THE EIGHT HOUR LAW, ACT OF 1 AUG. 1892 (27 STAT. 340; 40 U.S.C. 321- 322), IS SUSPENDED FOR THE PERIOD OF THE NATIONAL EMERGENCY.

"F. REGULARLY SCHEDULED TOUR OF DUTY.--- THE REGULARLY SCHEDULED TOUR OF DUTY IS THE NUMBER OF HOURS PER DAY AND DAYS PER WEEK THAT AN INDIVIDUAL EMPLOYEE OR GROUP OF EMPLOYEES IS REQUIRED TO WORK BY PROPER AUTHORITY, AND FOR WHICH OVERTIME COMPENSATION IS PAYABLE FOR ALL HOURS WORKED IN EXCESS OF THE REGULAR 40-HOUR TOUR OF DUTY.

"G. SCHEDULE OF WORKING HOURS.--- COMMANDANTS OR COMMANDING OFFICERS MAY DETERMINE WHICH HOURS AN EMPLOYEE MAY BE REQUIRED TO WORK ON HIS REGULAR WORK DAY OR ON HIS ADMINISTRATIVE WORK DAY.'

IT WOULD APPEAR FROM THE FOREGOING THAT THE LOCAL COMMAND OF FIELD ACTIVITIES HAS AMPLE AUTHORITY TO SCHEDULE DAILY WORKING HOURS AS THE NEEDS OF THE SERVICE MAY REQUIRE, ESPECIALLY IN UNUSUAL CIRCUMSTANCES SUCH AS ARE HERE INDICATED.

YOUR DECISION IS REQUESTED AS TO WHETHER A SHIP MAINTENANCE MECHANIC WHOSE REGULAR TOUR OF DUTY IS 15 HOURS DAILY FROM 6:00 A.M. TO 9:00 P.M. MONDAY, WEDNESDAY, AND FRIDAY AND WHO WAS EXCUSED FROM WORK ON WEDNESDAY, 25 DECEMBER 1946, A HOLIDAY, SHOULD BE CREDITED WITH 15 HOURS FOR PAY PURPOSES SINCE HE WAS RELIEVED OR PREVENTED FROM WORKING THIS NUMBER OF HOURS BECAUSE OF THE OCCURRENCE OF A HOLIDAY, AND AT WHAT RATE, IN THE EVENT SUCH A TOUR OF DUTY WAS AUTHORIZED OR IN THE EVENT SUCH A TOUR OF DUTY WAS NOT AUTHORIZED.'

IT APPEARS FROM THE TITLE OF THE POSITION AND THE NATURE OF THE DUTIES PERFORMED AS OUTLINED IN YOUR LETTER, SUPRA, THAT, IN THE ABSENCE OF SOME SPECIAL EXEMPTION, THE HOURS OF EMPLOYMENT OF SHIP MAINTENANCE MECHANICS WOULD BE SUBJECT TO THE PROVISIONS OF THE 8-HOUR LAW AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 SAT. 726, WHICH PROHIBITS THE EMPLOYMENT OF MECHANICS, LABORERS, AND OTHERS IN SIMILAR OCCUPATIONS FOR MORE THAN 8 HOURS ON ANY ONE CALENDAR DAY EXCEPT IN CASE OF EXTRAORDINARY EMERGENCY. THE PRESIDENT BY VARIOUS EXECUTIVE ORDERS HAS FOUND THAT AN EXTRAORDINARY EMERGENCY EXISTS WITH RESPECT TO CERTAIN EMPLOYMENT IN SEVERAL DEPARTMENTS AND ESTABLISHMENTS BUT I AM UNAWARE OF ANY SUCH EXECUTIVE ORDER APPLICABLE TO EMPLOYMENTS UNDER THE NAVY DEPARTMENT WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, OR ANY STATUTE WHICH SPECIFICALLY EXEMPTS LABORERS AND MECHANICS EMPLOYED BY THE NAVY DEPARTMENT FROM THE PROVISIONS OF THE 8- HOUR LAW. HOWEVER, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTION 5. (A) OF THE ACT APPROVED JUNE 28, 1940, 54 STAT. 678, READING IN PART AS FOLLOWS:

SEC. 5. (A) NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, THE REGULAR WORKING HOURS OF THE NAVY DEPARTMENT AND THE COAST GUARD AND THEIR FIELD SERVICES SHALL BE EIGHT HOURS A DAY OR FORTY HOURS PER WEEK DURING THE PERIOD OF THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, TO EXIST: PROVIDED, THAT UNDER SUCH REGULATIONS AS THE HEAD OF THE DEPARTMENT CONCERNED MAY PRESCRIBE AND WHERE ADDITIONAL EMPLOYEES CANNOT BE OBTAINED TO MEET THE EXIGENCIES OF THE SITUATION, THESE HOURS MAY BE EXCEEDED: * * *

IT IS PRESUMED THAT THE NAVAL CIVILIAN PERSONNEL INSTRUCTIONS QUOTED IN YOUR LETTER, SUPRA, PARTIALLY ARE BASED UPON AUTHORITY CONTAINED IN THAT ACT INCLUDING SUBSECTION E (1) OF SECTION 85.2-E, REVISION I, AS AMENDED, OF THOSE REGULATIONS WHICH SUBSECTION STATES THAT THE PROVISIONS OF THE 8- HOUR LAW ARE SUSPENDED FOR THE PERIOD OF THE NATIONAL EMERGENCY. ACCORDINGLY, THE 8-HOUR LAW OF AUGUST 1, 1892, AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726, DOES NOT APPEAR TO BE FOR APPLICATION HERE, AND I AM NOT AWARE OF ANY OTHER LAW WHICH PURPORTS TO LIMIT THE DAILY HOURS OF EMPLOYMENT OF SUCH EMPLOYEES.

PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, 1247, PROVIDES---

THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1985 ( U.S.C., TITLE 5 SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.

INFORMATION HAS NOT BEEN FURNISHED AS TO THE TERMS OF THE APPOINTMENTS OF SHIP MAINTENANCE MECHANICS FROM WHICH A DETERMINATION MAY BE MADE WHETHER SUCH EMPLOYEES PROPERLY ARE FOR CONSIDERING AS "REGULAR EMPLOYEES" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE HOLIDAY PAY STATUTE, SUPRA. IN THAT CONNECTION, IT WAS HELD IN 25 COMP. GEN. 407, QUOTING FROM THE SYLLABUS---

EMPLOYEES COMPENSATED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME NOT TO EXCEED ONE YEAR, BEING TEMPORARY EMPLOYEES AS DEFINED BY SECTION 1.1 OF THE ANNUAL AND SICK LEAVE REGULATIONS, MAY NOT BE REGARDED AS "REGULAR EMPLOYEES" ENTITLED TO HOLIDAY COMPENSATION UNDER THE PER DIEM, ETC., EMPLOYEE HOLIDAY PAY STATUTE OF JUNE 29, 1938, FOR LABOR DAY, 1945, ON WHICH THEY PERFORMED NO WORK.

"INDEFINITE EMPLOYEES" AS DEFINED IN SECTION 1.1 OF THE ANNUAL AND SICK LEAVE REGULATIONS, WHO ARE PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS UNDER WAR SERVICE INDEFINITE APPOINTMENTS ARE NOT TO BE REGARDED AS "REGULAR EMPLOYEES" ENTITLED TO HOLIDAY COMPENSATION PURSUANT TO THE PER DIEM, ETC., EMPLOYEE HOLIDAY PAY STATUTE OF JUNE 29, 1938, FOR LABOR DAY, 1945, ON WHICH THEY PERFORMED NO WORK, UNLESS AND UNTIL THEY HAVE WORKED AT LEAST ONE YEAR PRIOR TO SUCH HOLIDAY.

SEE, ALSO, 25 COMP. GEN. 452; ID. 825.

IF THE TERMS OF THE APPOINTMENTS OF SHIP MAINTENANCE MECHANICS BE SUCH AS TO BRING THEM WITHIN THE DEFINITION OF "REGULAR EMPLOYEES" AS CONTAINED IN THOSE DECISIONS, THEN, IN ACCORDANCE WITH THE TERMS OF THE HOLIDAY PAY STATUTE, THOSE OF SUCH EMPLOYEES WHO WERE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY ARE ENTITLED TO RECEIVE THE SAME PAY FOR WEDNESDAY, DECEMBER 25, 1946, AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED, AND AS TO SUCH EMPLOYEES THE USUAL 15 HOURS OF DUTY SHALL BE CONSIDERED THE ORDINARY DAY'S WORK. THE OTHER HAND, IF THE TERMS OF THE APPOINTMENTS OF SHIP MAINTENANCE MECHANICS BE SUCH THAT THEY MAY NOT BE CONSIDERED AS "REGULAR EMPLOYEES," I DO NOT KNOW OF ANY AUTHORITY WHICH WOULD AUTHORIZE PAYMENT FOR DECEMBER 25, 1946, WHEN NO SERVICE WAS PERFORMED.