A-26662, APRIL 23, 1929, 8 COMP. GEN. 558

A-26662, APRIL 23, 1929, 8 COMP. GEN. 558

COMPENSATION - HOLIDAYS - NAVY-YARD EMPLOYEES WHILE INAUGURATION DAY IS A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA IT IS NOT A HOLIDAY TO WHICH NAVY YARD EMPLOYEES ARE ENTITLED WITH PAY IN ADDITION TO THEIR 30 DAYS' LEAVE OF ABSENCE WITH PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, IN VIEW OF WHICH IT WAS LEGAL AND PROPER FOR THE SECRETARY OF THE NAVY TO EXCUSE THE EMPLOYEES ON INAUGURATION DAY, 1929, AND TO REQUIRE THE TIME TO BE CHARGED TO LEAVE WITH PAY IF ACCRUED AND DUE, OTHERWISE TO LEAVE WITHOUT PAY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, APRIL 23, 1929:

THERE HAS BEEN TRANSMITTED TO THIS OFFICE BY YOUR DIRECTION A PROTEST OF A COMMITTEE OF EMPLOYEES, REPRESENTING THE CLERICAL, DRAFTING, INSPECTION, AND MESSENGER FORCES AT THE WASHINGTON NAVY YARD, AGAINST THE ACTION OF THE SECRETARY OF THE NAVY, BY HIS ORDER OF MARCH 2, 1929, IN EXCUSING SUCH EMPLOYEES FROM WORK ON INAUGURATION DAY, MARCH 4, 1929, AND REQUIRING THE TIME TO BE CHARGED TO LEAVE WITH PAY IF ACCRUED AND DUE, OTHERWISE TO LEAVE WITHOUT PAY.

THE ORDER OF THE SECRETARY OF THE NAVY OF MARCH 2, 1929, WAS AS FOLLOWS:

1. INAUGURATION DAY, MARCH 4, 1929, BEING A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA UNDER THE PROVISIONS OF REFERENCE, ALL CIVILIAN EMPLOYEES OF THE NAVAL ESTABLISHMENT IN THE DISTRICT OF COLUMBIA SHALL BE EXCUSED FROM DUTY ON THAT DAY, EXCEPT THOSE WHO MAY FOR SPECIAL PUBLIC REASONS BE EXCEPTED FROM THE PROVISIONS OF THIS ORDER, OR THOSE WHOSE ABSENCE FROM DUTY WOULD BE INCONSISTENT WITH THE PROVISIONS OF EXISTING LAW.

2.THE TIME OF EMPLOYEES EXCUSED UNDER THE PROVISIONS OF THIS ORDER SHALL BE CHARGED TO LEAVE WITH PAY IF ACCRUED AND DUE, OTHERWISE TO LEAVE WITHOUT PAY.

THERE WOULD APPEAR TO BE NO DOUBT THAT THE EMPLOYEES HERE IN QUESTION ARE "CIVILIAN EMPLOYEES OF THE NAVAL ESTABLISHMENT IN THE DISTRICT OF COLUMBIA" AND, THEREFORE, WITHIN THE PURVIEW OF THE ORDER, AND THEY HAVE BEEN CONSIDERED AS PER DIEM EMPLOYEES UNDER STATUTES HERETOFORE ENACTED WITH RESPECT TO HOLIDAY PAY AND LEAVE OF ABSENCE WITH PAY. SEE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENT.

WHILE INAUGURATION DAY IS A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA, ACT OF JUNE 18, 1888, 25 STAT. 185, AS AMENDED BY THE ACT OF JUNE 30, 1902, 32 STAT. 543, IT IS NOT ONE OF THE HOLIDAYS WHICH HAVE BEEN SPECIFICALLY GRANTED WITH PAY TO NAVY YARD PER DIEM EMPLOYEES BY STATUTE. SEE ACTS OF JANUARY 6, 1885, 23 STAT. 516, FEBRUARY 23, 1887, 24 STAT. 644, AND JUNE 28, 1894, 28 STAT. 96.

THE ACT OF AUGUST 29, 1916, 39 STAT. 617, PROVIDES AS FOLLOWS:

* * * EACH AND EVERY EMPLOYEE OF THE NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT IS HEREBY GRANTED THIRTY DAYS' LEAVE OF ABSENCE EACH YEAR, WITHOUT FORFEITURE OF PAY DURING SUCH LEAVE: PROVIDED FURTHER, THAT IT SHALL BE LAWFUL TO ALLOW PRO RATA LEAVE ONLY TO THOSE SERVING TWELVE CONSECUTIVE MONTHS OR MORE: AND PROVIDED FURTHER, THAT IN ALL CASES THE HEADS OF DIVISIONS SHALL HAVE DISCRETION AS TO THE TIME WHEN THE LEAVE CAN BEST BE ALLOWED: AND PROVIDED FURTHER, THAT NOT MORE THAN THIRTY DAYS' LEAVE WITH PAY SHALL BE ALLOWED ANY SUCH EMPLOYEE IN ONE YEAR: PROVIDED FURTHER, THAT THIS PROVISION SHALL NOT BE CONSTRUED TO DEPRIVE EMPLOYEES OF ANY SUCH SICK LEAVE OR LEGAL HOLIDAYS TO WHICH THEY MAY NOW BE ENTITLED UNDER EXISTING LAW.

THE PRACTICAL QUESTION INVOLVED IS WHETHER THE SECRETARY OF THE NAVY WAS THUS AUTHORIZED BY HIS COMPULSORY ORDER TO REQUIRE THE EMPLOYEES TO TAKE A DAY'S LEAVE OF ABSENCE ON A DAY THAT WAS A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA. THE PHRASE IN THE 1916 STATUTE "LEGAL HOLIDAYS TO WHICH THEY MAY NOW BE ENTITLED UNDER EXISTING LAW," REFERS TO THOSE HOLIDAYS SPECIFICALLY GRANTED NAVY YARD EMPLOYEES WITH PAY BY THE ACTS OF 1885 AND 1894, SUPRA. INAUGURATION DAY IS NOT INCLUDED AS A HOLIDAY TO WHICH NAVY YARD EMPLOYEES ARE ENTITLED WITH PAY IN ADDITION TO THEIR 30 DAYS' LEAVE WITH PAY. THEREFORE, IN SO FAR AS NAVY YARD PER DIEM EMPLOYEES ARE CONCERNED, INAUGURATION DAY WOULD BE IN PRACTICALLY THE SAME STATUS AS ANY OTHER DAY DURING THE YEAR WITH RESPECT TO THE GRANTING OF LEAVE.

THERE WOULD APPEAR TO BE NO QUESTION AS TO THE AUTHORITY OF THE SECRETARY OF THE NAVY TO REQUIRE THE TAKING OF COMPULSORY LEAVE BY NAVY YARD EMPLOYEES ON ANY DAY OF THE YEAR EXCEPT LEGAL HOLIDAYS TO WHICH THE EMPLOYEES ARE ENTITLED WITH PAY BY LAW. WHILE SUCH COMPULSORY LEAVE IS USUALLY REQUIRED IN THE PUBLIC INTERESTS BECAUSE OF LACK OF WORK OR OTHER PUBLIC NECESSITY IT MAY BE RESORTED TO, ALSO, FOR THE PURPOSE OF CLOSING A NAVY YARD IN ORDER TO OBSERVE A HOLIDAY OR PUBLIC CELEBRATION, ETC. PAY FOR INAUGURATION DAY WOULD NOT HAVE ACCRUED FOR NAVY YARD EMPLOYEES IN A PER DIEM STATUE UNLESS WORK WAS ACTUALLY PERFORMED OR LEAVE OF ABSENCE WITH PAY GRANTED. 11 COMP. DEC. 97; 42 CT.CLS. 191, 212. UNDER EXISTING LAW, IT WAS LEGAL AND PROPER FOR THE SECRETARY OF THE NAVY TO EXCUSE THE EMPLOYEES ON INAUGURATION DAY AND TO REQUIRE THE TIME TO BE CHARGED TO LEAVE WITH PAY IF ACCRUED AND DUE, OTHERWISE TO LEAVE WITHOUT PAY.