A-71493, MARCH 16, 1936, 15 COMP. GEN. 809

A-71493, MARCH 16, 1936, 15 COMP. GEN. 809

FORTY-HOUR WEEK EMPLOYEES - HOLIDAY FALLING ON SATURDAY PER DIEM EMPLOYEES OF THE MAIL EQUIPMENT SHOPS IN THE SEVERAL TRADES AND CRAFTS PLACED ON A 5-DAY WEEK BY THE ACT OF AUGUST 14, 1935, 49 STAT. 650, ARE ENTITLED TO GRATUITY PAY FOR A HOLIDAY FALLING ON SATURDAY, A NONWORK DAY, ON THE BASIS OF ONE-FIFTH OF THEIR WEEKLY WAGE. PER ANNUM POSTAL EMPLOYEES MAY NOT BE GRANTED A HOLIDAY ON MONDAY IN LIEU OF A LEGAL HOLIDAY FALLING ON SATURDAY WHICH HAS BEEN MADE A NONWORK DAY BY THE ACT OF AUGUST 14, 1935, 49 STAT. 650.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, MARCH 16, 1936:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 2, 1936, AS FOLLOWS:

SINCE MY LETTER OF FEBRUARY 24, REQUESTING A DECISION WITH REGARD TO THE COMPENSATION OF EMPLOYEES OF THE MAIL EQUIPMENT SHOPS FOR SATURDAY, FEBRUARY 22, YOUR DECISION OF FEBRUARY 13, ADDRESSED TO THE SECRETARY OF THE NAVY, HAS JUST BEEN BROUGHT TO MY ATTENTION. HOWEVER, SINCE THERE ARE THREE CLASSES OF EMPLOYEES IN THE MAIL EQUIPMENT SHOPS WHOSE RIGHTS MAY BE INVOLVED IN THE CONSIDERATION OF THE QUESTION PROPOUNDED, I SHALL AMPLIFY MY ORIGINAL REQUEST FOR A DECISION BY RESTATING THAT REQUEST AS FOLLOWS:

WITH RESPECT TO PER DIEM WORKERS IN THE SEVERAL TRADES AND CRAFTS WHO CAME WITHIN THE PROVISIONS OF THE ACT OF MARCH 28, 1934, AND WHOSE WEEKLY COMPENSATION WAS NOT REDUCED BY THE APPLICATION OF THE FORTY HOUR WEEK LAW --- ARE THEY ENTITLED TO PAY FOR FEBRUARY 22, 1936 (A LEGAL HOLIDAY WHICH FELL ON SATURDAY) AND, IF SO, AT THE RATE OF ONE FIFTH OF THEIR WEEKLY WAGES?

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 RESPECT TO PER ANNUM EMPLOYEES PLACED ON A FIVE DAY WEEK BY THE ACT OF AUGUST 14, 1935, WHO ARE PAID FOR SATURDAYS ALTHOUGH NOT REQUIRED TO WORK ON THAT DAY--- SHOULD SUCH EMPLOYEES RECEIVE THE FOLLOWING MONDAY OFF WHEN A LEGAL HOLIDAY FALLS ON SATURDAY? THIS INQUIRY IS PROMPTED BY THE FACT THAT IN YOUR DECISION OF OCTOBER 19, 1935, YOU STATED THAT SATURDAY IS A NON-WORK DAY THE SAME AS SUNDAY AS REGARDS EMPLOYEES OF THE MAIL EQUIPMENT SHOPS. WHEN A LEGAL HOLIDAY FALLS ON SUNDAY IT IS THE PRACTICE TO OBSERVE IT ON THE FOLLOWING DAY.

IT IS MY UNDERSTANDING THAT THE SECRETARY OF THE NAVY HAS ISSUED INSTRUCTIONS BASED ON YOUR DECISION ABOVE REFERRED TO, HOLDING PER DIEM EMPLOYEES ENTITLED TO AN INCREASE OF TWENTY PERCENT IN THEIR WAGE SCALES FOR THE WEEK COMMENCING FEBRUARY 17. IF THIS PROCEDURE IS FOLLOWED WITH RESPECT TO THE SKILLED TRADES PER DIEM WORKERS IN THE MAIL EQUIPMENT SHOPS, WHO ALREADY HAVE BEEN PAID FOR SATURDAY, THE NET RESULT WILL BE DOUBLE PAYMENT FOR THAT DAY.

THE DECISION OF MARCH 2, 1936, A-71493, BASED ON THE PRIOR ADMISSION OF YOUR DEPARTMENT OF FEBRUARY 24, 1936, ANSWERING IN THE AFFIRMATIVE THE QUESTION "WHETHER PER DIEM WORKERS IN THE MAIL EQUIPMENT SHOPS WHO ARE NOT REQUIRED TO BE ON DUTY SATURDAYS SHOULD BE PAID FOR FEBRUARY 22, 6," WAS INTENDED TO RELATE ONLY TO BONA FIDE PER DIEM EMPLOYEES, THAT IS, PER DIEM WORKERS IN THE SEVERAL TRADES AND CRAFTS WHOSE COMPENSATION IS AUTHORIZED OR REQUIRED TO BE MEASURED BY THE DAY. SEE DECISION OF FEBRUARY 13, 1936, A-70518, TO THE SECRETARY OF THE NAVY, CITED IN SAID DECISION, WHEREIN WAS QUOTED THE DECISION OF MAY 10, 1935, 14 COMP. GEN. 818, DEFINING THE TERM "PER DIEM EMPLOYEES," WITHIN THE MEANING OF THE HOLIDAY STATUTES, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

PER DIEM EMPLOYEES WITHIN THE MEANING OF THE HOLIDAY STATUTES INCLUDE ONLY THOSE EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED OR REQUIRED BY LAW, OR REGULATION ISSUED PURSUANT TO LAW, TO BE MEASURED BY THE DAY--- NOT EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED OR REQUIRED TO BE MEASURED OTHER THAN BY THE DAY BUT WHO ARE PAID ON A DAILY BASIS FOR ADMINISTRATIVE CONVENIENCE OR FOR ANY OTHER REASON.

ACCORDINGLY, PER DIEM EMPLOYEES OF THE CLASS MENTIONED IN THE SECOND PARAGRAPH OF YOUR LETTER ARE ENTITLED TO GRATUITY HOLIDAY PAY FOR FEBRUARY 22, 1936, ON WHICH NO WORK WAS PERFORMED, AT THE SAME RATE REGULARLY PAID FOR OTHER DAYS OF THE WEEK, THAT IS, ONE-FIFTH OF THEIR WEEKLY WAGE.

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.

WITH REFERENCE TO THE QUESTION RAISED IN THE FOURTH PARAGRAPH OF YOUR LETTER, THERE IS NO AUTHORITY OF LAW TO GRANT A HOLIDAY ON MONDAY TO PER ANNUM POSTAL EMPLOYEES IN LIEU OF A LEGAL HOLIDAY FALLING ON SATURDAY, WHICH HAS BEEN MADE A NONWORK DAY BY THE ACT OF AUGUST 14, 1935, 49 STAT. 650.

REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, THE RULE STATED IN THE DECISION OF FEBRUARY 13, 1936, A-70518, 15 COMP. GEN. 700, TO THE SECRETARY OF THE NAVY, MAY HAVE RESULTED IN AN INCREASE OF 20 PERCENT IN THE TOTAL WAGE OF BONA FIDE PER DIEM EMPLOYEES IN THE NAVY YARDS AND NAVAL STATIONS FOR THE WORK WEEK COMMENCING MONDAY, FEBRUARY 17, AND ENDING WITH FRIDAY, FEBRUARY 21, BY AUTHORIZING THE PAYMENT OF GRATUITY PAY FOR SATURDAY, FEBRUARY 22, BUT IT DOES NOT FOLLOW THEREFROM THAT PER DIEM WORKERS IN THE MAIL-EQUIPMENT SHOPS, WHO ARE AUTHORIZED TO BE PAID GRATUITY HOLIDAY PAY FOR SATURDAY, FEBRUARY 22, 1936, WILL THEREBY BE PAID DOUBLE COMPENSATION FOR THAT DAY. IF NO WORK IS PERFORMED ON A SATURDAY SAID EMPLOYEES ARE NOT PAID FOR THE DAY, BUT FOR SATURDAY, FEBRUARY 22, 1936, A LEGAL HOLIDAY, THEY WERE ENTITLED TO ONE DAY'S GRATUITY PAY BUT NOT TO DOUBLE PAY, UNLESS WORK WAS ACTUALLY PERFORMED ON THAT DAY.