A-71493, APRIL 28, 1936, 15 COMP. GEN. 945

A-71493, APRIL 28, 1936, 15 COMP. GEN. 945

FORTY-HOUR-WEEK EMPLOYEES - MAIL-EQUIPMENT SHOPS - HOLIDAY FALLING ON SATURDAY PER DIEM EMPLOYEES OF THE MAIL-EQUIPMENT SHOPS NOT IN A RECOGNIZED TRADE OR CRAFT, PLACED ON A 5-DAY WEEK BY THE ACT OF AUGUST 14, 1935, 49 STAT. 650, ARE NOT BONA FIDE PER DIEM EMPLOYEES WITHIN THE MEANING OF THE HOLIDAY STATUTES AND ARE NOT ENTITLED TO COMPENSATION FOR LEGAL HOLIDAYS FALLING ON SATURDAY, A NONWORK DAY.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL APRIL 28, 1936:

IN YOUR LETTER DATED MARCH 2, 1936, YOU REQUESTED DECISION OF THE FOLLOWING QUESTION, AMONG OTHERS:

WITH RESPECT TO PER DIEM WORKERS PLACED ON A FIVE-DAY WEEK BY THE ACT OF AUGUST 14, 1935, BUT WHO NEITHER WORK ON SATURDAYS NOR RECEIVE PAY THEREFOR. ARE THEY ENTITLED TO PAY FOR LEGAL HOLIDAYS FALLING ON SATURDAY?

WITH REFERENCE THERETO YOU WERE ADVISED IN DECISION OF MARCH 16, 1936, 15 COMP. GEN. 809, AS FOLLOWS:

DECISION IS RESERVED AS TO THE OTHER CLASSES OF PER DIEM EMPLOYEES OF THE MAIL EQUIPMENT SHOPS MENTIONED IN THE THIRD PARAGRAPH OF YOUR LETTER UNTIL ADDITIONAL INFORMATION HAS BEEN FURNISHED THIS OFFICE, INCLUDING A REFERENCE TO THE LAW AND/OR REGULATIONS, IF ANY, AUTHORIZING OR REQUIRING THEIR COMPENSATION TO BE MEASURED BY THE DAY, A STATEMENT AS TO THE NATURE OF THE DUTIES PERFORMED, AND WHETHER THIS CLASS OF PER DIEM EMPLOYEES HAS HERETOFORE BEEN GRANTED GRATUITY PAY FOR LEGAL HOLIDAYS ON WHICH NO WORK WAS PERFORMED, AND, IF SO, UNDER WHAT AUTHORITY.

THERE HAS NOW BEEN RECEIVED YOUR LETTER OF MARCH 30, 1936, WHICH READS:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 16, A-71493, REQUESTING CERTAIN INFORMATION WITH REGARD TO EMPLOYEES OF THE MAIL EQUIPMENT SHOPS WHOSE RIGHT TO PAY FOR FEBRUARY 22, 1936, IS IN QUESTION. IN COMPLIANCE WITH THE REQUEST CONTAINED IN YOUR LETTER THE FOLLOWING DATA IS FURNISHED:

1. A REFERENCE TO THE LAW AND/OR REGULATIONS AUTHORIZING OR REQUIRING THE COMPENSATION OF THESE EMPLOYEES TO BE MEASURED BY THE DAY.

THE PAY OF THESE PER-DIEM WORKERS IS AT PRESENT GOVERNED BY THE PROVISIONS OF THE ACT APPROVED JULY 3, 1930 (PUBLIC, NO. 523), CLASSIFYING THEIR COMPENSATION UNDER THE HEADING "CLERICAL MECHANICAL SERVICE," AND FIXING A RANGE OF HOURLY RATES. APPOINTMENTS HAVE ALWAYS BEEN MADE AT SO MUCH PER DIEM, BASED ON THE HOURLY RATES SPECIFIED. PRIOR TO THE PASSAGE OF THE CLASSIFICATION ACT THIS CLASS OF EMPLOYEES WAS ALWAYS APPOINTED AT PER-DIEM RATES. NO RECORDS ARE AVAILABLE AS TO HOW IT CAME ABOUT IN THE BEGINNING THAT THEIR COMPENSATION WAS FIXED ON A PER-DIEM BASIS. THE SAME THING IS TRUE OF THE PER-DIEM RATES FIXED FOR THOSE IN THE SKILLED TRADES. THE BEST INFORMATION AVAILABLE IS THAT ORIGINALLY THERE WAS A DISTINCTION MADE BETWEEN OFFICE WORKERS AND SHOP WORKERS, THE FORMER RECEIVING ANNUAL "SALARIES" AND THE LATTER RECEIVING PER-DIEM "WAGES.' THAT POLICY WAS CONTINUED UNTIL THE CLASSIFICATION ACT PRESCRIBING RATES OF COMPENSATION WAS ENACTED.

2.A STATEMENT AS TO THE NATURE OF THE DUTIES PERFORMED BY THESE EMPLOYEES.

FOREMEN OF SUBDIVISIONS IN THE SHOPS SUPERVISE AND DIRECT THE WORK OF THEIR RESPECTIVE SECTIONS IN WHICH ARE EMPLOYED GROUPS OF PER-DIEM AS WELL AS PER-ANNUM WORKERS.

PRESSMEN OPERATE PUNCH PRESSES FOR PUNCHING OUT AND FORMING METAL PARTS OF LOCKS, ETC.

LOCKMAKERS MACHINE AND ASSEMBLE PARTS OF LOCKS.

MAIL-BAG REPAIRERS REPAIR LETTER-CARRIERS SATCHELS AND MAIL BAGS, BY HAND AND MACHINE.

INSPECTORS EXAMINE MAIL BAGS AND LOCKS, ETC.

GENERAL MECHANICS REPAIR NUMBERING MACHINES.

POSTMARKING STAMP MAKERS MAKE FLEXIBLE POSTMARKING STAMPS.

SEWERS REPAIR MAIL BAGS BY HAND AND SEWING MACHINE.

ASSISTANT FOREMEN ACT AS FOREMEN IN THE ABSENCE OF THE FOREMEN, AND PERFORM INSPECTION WORK.

3. HAS THIS CLASS OF EMPLOYEES HERETOFORE BEEN GRANTED GRATUITY PAY FOR LEGAL HOLIDAYS ON WHICH NO WORK WAS PERFORMED, AND, IF SO, UNDER WHAT AUTHORITY?

THESE EMPLOYEES HAVE RECEIVED PAY FOR NATIONAL HOLIDAYS UPON WHICH NO WORK WAS PERFORMED UNDER THE PROVISIONS OF 5 U.S.C. 86, 87.

AN EARLY DECISION IN THIS MATTER WILL BE APPRECIATED.

THE FOLLOWING IS QUOTED FROM DECISION OF MAY 10, 1935 (14 COMP. GEN. 818, 820):

THE ACTS OF JANUARY 6, 1885 (23 STAT. 516); FEBRUARY 23, 1887 (24 STAT. 644); AND JUNE 28, 1894 (28 STAT. 96), PROVIDE, RESPECTIVELY, AS FOLLOWS:

"THAT THE EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, BUREAU OF PRINTING AND ENGRAVING, AND ALL OTHER PER-DIEM EMPLOYEES OF THE GOVERNMENT ON DUTY AT WASHINGTON, OR ELSEWHERE IN THE UNITED STATES, SHALL BE ALLOWED THE FOLLOWING HOLIDAYS TO WIT: THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE FOURTH DAY OF JULY, THE TWENTY-FIFTH DAY OF DECEMBER, AND SUCH DAYS AS MAY BE DESIGNATED BY THE PRESIDENT AS DAYS FOR NATIONAL THANKSGIVING, AND SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS.

"THAT ALL PER-DIEM EMPLOYEES OF THE GOVERNMENT, ON DUTY AT WASHINGTON OR ELSEWHERE IN THE UNITED STATES, SHALL BE ALLOWED THE DAY OF EACH YEAR WHICH IS CELEBRATED AS "MEMORIAL" OR ,DECORATION DAY" AND THE FOURTH OF JULY OF EACH YEAR, AS HOLIDAY, AND SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS.

"THAT THE FIRST MONDAY OF SEPTEMBER IN EACH YEAR, BEING THE DAY CELEBRATED AND KNOWN AS ,LABOR'S HOLIDAY," IS HEREBY MADE A LEGAL PUBLIC HOLIDAY, TO ALL INTENTS AND PURPOSES IN THE SAME MANNER AS CHRISTMAS, THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE THIRTIETH DAY OF MAY, AND THE FOURTH DAY OF JULY ARE NOW MADE BY LAW PUBLIC HOLIDAYS.'

THERE MAY HAVE BEEN A MISCONCEPTION AS TO THE MEANING OF THE PHRASE "ALL OTHER PER-DIEM EMPLOYEES" APPEARING IN THE FIRST-MENTIONED STATUTE AND TO WHICH THE REMAINING STATUTES REFER. THE USE OF THE WORD "OTHER" JUSTIFIES APPLICATION OF THE WELL-KNOWN EJUSDEM GENERIS RULE WHEREBY THE GENERAL TERM OR DESCRIPTION "PER DIEM" EMPLOYEES OF THE GOVERNMENT SHOULD BE UNDERSTOOD TO INCLUDE GENERALLY THOSE HAVING DUTIES SIMILAR IN NATURE AND KIND TO THOSE SPECIFICALLY ENUMERATED IN THE STATUTE, VIZ, "EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, BUREAU OF PRINTING AND ENGRAVING" PAID ON A PER-DIEM BASIS; THAT IS, PRIMARILY THOSE EMPLOYEES WHO ARE IN A RECOGNIZED TRADE OR CRAFT OR SIMILAR OCCUPATION (14 COMP. GEN. 388). * * *

THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1498, PROVIDES AS FOLLOWS:

CLERICAL-MECHANICAL SERVICE

THE CLERICAL-MECHANICAL SERVICE SHALL INCLUDE ALL CLASSES OF POSITIONS WHICH ARE NOT IN A RECOGNIZED TRADE OR CRAFT AND WHICH ARE LOCATED IN THE GOVERNMENT PRINTING OFFICE, THE BUREAU OF ENGRAVING AND PRINTING, THE MAIL EQUIPMENT SHOP, THE DUTIES OF WHICH ARE TO PERFORM OR TO DIRECT MANUAL OR MACHINE OPERATIONS REQUIRING SPECIAL SKILL OR EXPERIENCE, OR TO PERFORM OR DIRECT THE COUNTING, EXAMINING, SORTING, OR OTHER VERIFICATION OF THE PRODUCT OF MANUAL OR MACHINE OPERATIONS.

SEE, ALSO, SECTION 5 OF THE STATUTE EXEMPTING POSITIONS IN THE TRADES AND CRAFTS FROM CLASSIFICATION.

AS THE POSITIONS LISTED IN YOUR LETTER HAVE BEEN CLASSIFIED IN THE CLERICAL-MECHANICAL SERVICE, WHICH IS EXPRESSLY APPLICABLE ONLY TO POSITIONS "NOT IN A RECOGNIZED TRADE OR CRAFT" THEY ARE NOT TO BE REGARDED AS BONA-FIDE PER-DIEM EMPLOYEES WITHIN THE MEANING OF THE HOLIDAY STATUTES NOTWITHSTANDING THEIR COMPENSATION IS REQUIRED TO BE FIXED BY LAW ON AN HOURLY BASIS.

ACCORDINGLY, THE EMPLOYEES IN QUESTION ARE NOT ENTITLED TO COMPENSATION FOR LEGAL HOLIDAYS FALLING ON SATURDAY, A NONWORK DAY AND THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.