A-89369, MAY 23, 1938, 17 COMP. GEN. 970

A-89369, MAY 23, 1938, 17 COMP. GEN. 970

SUNDAYS AND HOLIDAYS - LEAVES OF ABSENCE - COMPENSATION OF 40-HOUR-WEEK EMPLOYEES OF PANAMA CANAL A 40-HOUR-WEEK EMPLOYEE OF THE PANAMA CANAL ABSENT ON ANNUAL LEAVE FOR A PERIOD INCLUDING SEVERAL SATURDAYS, TWO OF WHICH ARE LEGAL HOLIDAYS, THE OTHERS NONWORK DAYS BY REASON OF SATURDAY NONINCLUSION WITHIN HIS REGULAR TOUR OF DUTY, IS NOT ENTITLED TO PAY FOR THE SATURDAY NONWORK DAYS NOR GRATUITY PAY FOR THE HOLIDAYS, THE LEAVE REGULATIONS IN FORCE AT THE TIME CLEARLY DENYING PAY FOR THE SATURDAY NONWORK DAYS, THE ACT OF JANUARY 6, 1885, 23 STAT. 516, AUTHORIZING PAY FOR HOLIDAYS TO "PER-DIEM EMPLOYEES OF THE GOVERNMENT ON DUTY * * * IN THE UNITED STATES" HAVING BEEN ENACTED PRIOR TO THE OCCUPATION OF THE CANAL ZONE BY THE UNITED STATES NOT BEING APPLICABLE TO EMPLOYEES OF THE CANAL ZONE AND THE EXECUTIVE ORDER OF FEBRUARY 2, 1914, AUTHORIZING GRATUITY HOLIDAY PAY ONLY TO THOSE PER-DIEM EMPLOYEES OF THE CANAL "WHO WORK ON THE DAYS PRIOR AND SUBSEQUENT TO THE HOLIDAY," AND WHILE THE GENERAL RULE IS THAT LEAVE WITH PAY IS SYNONYMOUS WITH WORK OR A DUTY STATUS, THE APPLICATION OF THE EXECUTIVE ORDER IN QUESTION ADMINISTRATIVELY IN FORCE FOR SO MANY YEARS WILL NOT NOW BE DISTURBED. 17 COMP. GEN. 348, AMPLIFIED.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, MAY 23, 1938:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED FEBRUARY 25, 1938, FROM WAYNE L. BOYER, AN EMPLOYEE OF THE PANAMA CANAL, AS FOLLOWS:

IN REFERENCE TO YOUR LETTER TO THE GOVERNOR OF THE PANAMA CANAL DATED OCTOBER 18, 1937, WHICH CONTAINED YOUR DECISION FOR LEAVE PAY OF 40-HR. WEEK EMPLOYEES, HAS TO DATE NOT BEEN EFFECTIVE.

I WAS APPOINTED JULY 22, 1936, AS TOOLMAKER WITH THE PANAMA CANAL. THE APPOINTMENT STATES THAT MY RATE OF PAY SHALL BE $1.43 PER HR. MY TRAVEL TIME TO THE CANAL ZONE WAS PAID AT THAT RATE, BUT AFTER RETURNING FROM AUTHORIZED LEAVE OF 50 DAYS WITH PAY BEGINNING DEC. 13, 1937, AND ENDING FEB. 2, 1938, I FIND THE FOLLOWING DAYS HAVE BEEN DEDUCTED FROM MY LEAVE FOR WHICH I HAVE RECEIVED NO COMPENSATION:

DEC. 18, 1937 (THESE ARE GRATUITY HOLIDAYS.); DEC. 25, 1937 (THESE ARE GRATUITY HOLIDAYS.); JAN. 1, 1938; JAN. 8, 1938; JAN. 15, 1938; JAN. 22, 1938; JAN. 29, 1938.

MY APPOINTMENT READS AS FOLLOWS: "AND NO AGENT HAS AUTHORITY TO PROMISE PROMOTIONS, OR TO ALTER, MODIFY, OR WAIVE, IN ANY MANNER, ANY OF SAID CONDITIONS.' (SEE MANUAL OF INFORMATION--- REVISED MAY 1, 1935.) PAGE 20, PAR. 31 READS AS FOLLOWS: "SUCH ANNUAL LEAVE SHALL BE PAID FOR AT THE RATE RECEIVED BY THE EMPLOYEE WHEN HE ENTERED ON LEAVE.'

IN CONNECTION WITH THE ABOVE I AM REQUESTING OF YOUR OFFICE THE LEGALITY OF THIS PROCEDURE. AFTER RETURNING FROM LEAVE I TRIED TO ASCERTAIN THROUGH THE COMPTROLLER OF THE PANAMA CANAL THE REASONS FOR THESE DEDUCTIONS, BUT ALL REPLIES WERE EVASIVE AND RIDICULOUS.

UNDER DATE OF MARCH 19, 1938, THE GOVERNOR OF THE PANAMA CANAL REPORTED AS FOLLOWS:

IN REPLY TO YOUR LETTER OF THE 8TH INSTANT, FILE A-89369, ADDRESSED TO OUR WASHINGTON OFFICE, THERE FOLLOWS A REPORT OF PAYMENTS TO MR. WAYNE L. BOYER, AN EMPLOYEE OF THE PANAMA CANAL, FOR THE PERIOD DECEMBER 1, 1937, TO FEBRUARY 28, 1938:

TABLE

DECEMBER 1937, PAY ROLL NO. 12259-68 (PAYMASTER'S JAN. 1938, VOU. NO. 1837):

SERVICE, REGULAR TIME, 64 HOURS AT $1.43-------------- $91.52

SERVICE, OVERTIME 23 1/4 HOURS AT $1.43--------------- 33.25

10 DAYS ANNUAL LEAVE, 13-22 (

7 DAYS TRAVEL LEAVE, 23-29 (

2 DAYS CUMULATIVE LEAVE, 30-31) 136 HOURS AT $1.43-- 194.48

------ $319.25

(18 AND 25 NONPAY DAYS.)

DEDUCTIONS:

RETIREMENT------------------------------------------- 14.30

MISCELLANEOUS---------------------------------------- 18.38

------ 32.68

NET AMOUNT PAID------------------------------- 286.57

JANUARY 1938, PAY ROLL NO. 1259-68 (PAYMASTER'S FEB. 1938, VOU. NO. 2100):

31 DAYS CUMULATIVE LEAVE, 1-31, 208 HOURS AT $1.43----------- 297.44

(1, 8, 15, 22, AND 29 NONPAY DAYS.)

DEDUCTIONS:

RETIREMENT------------------------------------------ $14.87

MISCELLANEOUS--------------------------------------- 18.18

------ 33.05

NET AMOUNT PAID------------------------------ 264.39

FEBRUARY 1938, PAY ROLL NO. 2259-68 (PAYMASTER'S MARCH 1938, VOU. NO. 2355):

1/2 DAY CUMULATIVE LEAVE, 1 1/2; 4 HOURS AT $1.43-- $ 5.72

1 1/2 DAYS LEAVE WITHOUT PAY, 1 1/2-2.

SERVICE, REGULAR TIME, 144 HOURS AT $1.43----------- 205.92

------ $211.64

DEDUCTIONS:

RETIREMENT------------------------------------------ 10.58

MISCELLANEOUS--------------------------------------- 18.99

----- 29.57

NET AMOUNT PAID------------------------------ 182.07

THE FOREGOING PAYMENTS WERE MADE IN ACCORDANCE WITH LEAVE REGULATIONS PROMULGATED JULY 24, 1937, TO BECOME EFFECTIVE AUGUST 1, 1937, WHICH WERE APPROVED BY THE SECRETARY OF WAR "BY AUTHORITY OF THE PRESIDENT" AUGUST 12, 1937, UNDER AUTHORITY OF AN ACT OF CONGRESS APPROVED JULY 9, 1937, AMENDING SECTION 81, TITLE 2, OF THE CANAL ZONE CODE.

IN CONNECTION WITH DECEMBER 25TH AND JANUARY 1ST WHICH ARE INDICATED IN MR. BOYER'S LETTER AS GRATUITY HOLIDAYS, REFERENCE IS MADE TO EXECUTIVE ORDER DATED FEBRUARY 2, 1914, WHICH READS IN PART AS FOLLOWS:

"12. EMPLOYEES ABOVE THE GRADE OF LABORER, APPOINTED WITH RATES OF PAY PER HOUR OR PER DAY, WILL NOT BE EMPLOYED OVER 8 HOURS IN ANY ONE CALENDAR DAY, EXCEPT IN CASE OF EMERGENCY. THE TIME SUCH EMPLOYEES WORK OVER 8 HOURS IN ONE CALENDAR DAY, AND TIME WORKED ON SUNDAYS AND REGULARLY AUTHORIZED HOLIDAYS, INCLUDING JANUARY 1ST, FEBRUARY 22D, MAY 30TH, JULY 4TH, LABOR DAY, THANKSGIVING DAY, AND DECEMBER 25TH, SHALL BE CONSIDERED OVERTIME FOR WHICH TIME AND ONE-HALF WILL BE ALLOWED. SUCH EMPLOYEES WHO WORK ON THE DAYS PRIOR AND SUBSEQUENT TO THE HOLIDAYS SPECIFICALLY NAMED ABOVE WILL BE ALLOWED THEIR REGULAR PAY FOR 8 HOURS FOR SUCH DAYS IN ADDITION TO PAY FOR ANY WORK PERFORMED: * * *"

IN VIEW OF THE FACT THAT NO SERVICE WAS ACTUALLY RENDERED ON THE REGULAR WORKING DAYS PRIOR OR SUBSEQUENT TO THE DAYS IN QUESTION NO HOLIDAY TIME WAS ALLOWABLE THEREFOR.

THE CLAIM PRESENTED BY MR. BOYER IS SIMILAR TO ONE SUBMITTED TO YOUR CLAIMS DIVISION BY MR. LAWRENCE BARCA, UNDER DATE OF NOVEMBER 29, 1937, WHICH WAS ADJUDICATED AS CLAIM NO. 0461051 AND MR. BARCA ADVISED THAT THERE WAS NO BALANCE DUE HIM IN THE PREMISES.

LEAVE REGULATIONS PROMULGATED JULY 24, 1937, EFFECTIVE AUGUST 1, 1937, PROVIDE:

LEAVE FOR 40-HOUR WEEK HOURLY EMPLOYEES

EFFECTIVE AUGUST 1, 1937, THE FOLLOWING RULES WILL GOVERN THE PAYMENTS FOR LEAVE DUE 40-HOUR WEEK HOURLY EMPLOYEES WHO WORK REGULARLY FIVE DAYS A WEEK;

1. WHILE ON AUTHORIZED LEAVE WITH PAY, PAYMENT SHALL BE MADE FOR EACH WORK DAY ABSENT AND ANY SUNDAY CHARGED TO LEAVE.

2. CUMULATIVE LEAVE SHALL BE PAID FOR AT A RATE PER DAY OF 8 HOURS, EQUAL TO ONE-FIFTH OF THE EQUIVALENT WEEKLY RATE OF PAY COMPUTED FOR WORK DAYS ONLY AT THE HOURLY RATE RECEIVED AT THE END OF THE TENTH MONTH OF THE YEAR IN WHICH THE LEAVE WAS EARNED.

3. ANNUAL LEAVE SHALL BE PAID FOR AT A RATE PER DAY OF 8 HOURS EQUAL TO ONE-FIFTH OF THE EQUIVALENT WEEKLY RATE OF PAY COMPUTED FOR WORK DAYS ONLY AT THE HOURLY RATE RECEIVED BY THE EMPLOYEE WHEN HE ENTERED ON LEAVE.

4. TRAVEL LEAVE SHALL BE PAID FOR AT THE SAME RATE AS THE LAST EARNED CUMULATIVE LEAVE AS COMPUTED IN (2) ABOVE.

5. ANY LEAVE EARNED AT A MONTHLY RATE WILL BE PAID FOR AT THE MONTHLY RATE AT WHICH EARNED.

6. NONWORK DAYS, EXCEPT SUNDAY, INCLUDED IN SUCH LEAVE SHALL NOT BE PAID FOR.

7. SUNDAYS AND NONWORK DAYS SHALL BE CHARGED TO LEAVE IF THE EMPLOYEE IS ABSENT ON BOTH THE LAST WORK DAY PRECEDING AND THE FIRST WORK DAY FOLLOWING SUCH SUNDAY OR NONWORK DAY.

8. THE SECOND NONWORK DAY WILL BE CONSIDERED THE SAME AS SUNDAY FOR EMPLOYEES WHOSE REGULAR WORK WEEK IS OTHER THAN FROM MONDAY TO FRIDAY, INCLUSIVE.

9. WHEN LEAVE OF SUCH HOURLY EMPLOYEES IS COMMUTED INTO CASH, THERE SHALL BE PAID FOR EACH DAY SO COMMUTED ONE-SEVENTH OF THE WEEKLY COMPENSATION AUTHORIZED HEREIN FOR LEAVES OF ABSENCE WHICH INCLUDE PAYMENT FOR SUNDAY.

ALL OF THE NONPAY DAYS FOR WHICH PAY CREDIT WAS NOT GIVEN THE EMPLOYEE IN THE STATEMENT OF ACCOUNT APPEARING IN THE ADMINISTRATIVE REPORT WERE SATURDAYS. WITH THE EXCEPTION OF DECEMBER 25, 1937, AND JANUARY 1, 1938, WHICH WERE LEGAL HOLIDAYS, THERE IS NO QUESTION BUT THAT THE ADMINISTRATIVE ACTION DENYING PAY TO THE EMPLOYEE FOR SATURDAYS, NONPAY DAYS, WAS CLEARLY CORRECT UNDER THE TERMS OF PARAGRAPHS 1 AND 6 OF THE QUOTED LEAVE REGULATIONS.

THE ACT OF JANUARY 6, 1885, 23 STAT. 516, PROVIDES 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.

OF COURSE, THIS STATUTE WAS ENACTED LONG PRIOR, AND WITHOUT REFERENCE, TO THE OCCUPATION OF THE CANAL ZONE BY THE UNITED STATES. THE WORDS "PER- DIEM EMPLOYEES OF THE GOVERNMENT ON DUTY * * * IN THE UNITED STATES" COULD NOT HAVE REFERRED TO THE EMPLOYEES IN THE CANAL ZONE. THE GENERAL LAWS OF THE UNITED STATES DID NOT AUTOMATICALLY EXTEND TO THE CANAL ZONE IMMEDIATELY UPON OCCUPATION UNDER TREATY, BUT ONLY TO THE EXTENT PROVIDED BY THE STATUTES ENACTED BY THE CONGRESS. DOWNES V. BIDWELL, 182 U.S. 244; 27 OP.ATTY.GEN. 594. THE ACTS OF APRIL 28, 1904, 33 STAT. 429, AND AUGUST 24, 1912, 37 STAT. 561, VESTED IN THE PRESIDENT THE AUTHORITY TO FIX THE COMPENSATION OF EMPLOYEES IN THE PANAMA CANAL, WITH CERTAIN CONDITIONS NOT HERE INVOLVED, WHICH AUTHORITY HAS BEEN CONTINUOUSLY EXERCISED BY THE PRESIDENT AND WAS AFFIRMED AND AMPLIFIED BY THE ACTS OF JUNE 19, 1934, 48 STAT. 1122 AND JULY 9, 1937, 50 STAT. 486. IT MUST BE CONCLUDED, THEREFORE, THAT PER-DIEM EMPLOYEES OF THE PANAMA CANAL ARE NOT ENTITLED TO GRATUITY HOLIDAY PAY UNDER THE TERMS OF THE ACT OF JANUARY 6, 1885, 23 STAT. 516, WHETHER THE HOLIDAY OCCURS DURING THE REGULAR TOUR OF 40 HOURS PER WEEK OR ON NONWORK DAYS (COMPARE 13 COMP. GEN. 370; 15 ID. 700), BUT ONLY UNDER THE TERMS AND CONDITIONS OF THE EXECUTIVE ORDER DATED FEBRUARY 2, 1914, QUOTED IN THE ADMINISTRATIVE REPORT, ISSUED PURSUANT TO THE AUTHORITY VESTED IN THE PRESIDENT BY THE ACT OF AUGUST 24, 1912, SUPRA.

UNDER SAID EXECUTIVE ORDER GRATUITY HOLIDAY PAY IS AUTHORIZED TO BE PAID ONLY TO THOSE PER-DIEM EMPLOYEES "WHO WORK ON THE DAYS PRIOR AND SUBSEQUENT TO THE HOLIDAY.' IN PARAGRAPH 43.2 OF THE PERSONNEL REGULATIONS OF THE PANAMA CANAL, ISSUED MARCH 1, 1928, THE EXECUTIVE ORDER IN QUESTION WAS ADMINISTRATIVELY APPLIED AS FOLLOWS:

* * * SUCH EMPLOYEES WHO WORK ON THE DAYS PRIOR AND SUBSEQUENT TO THE FOLLOWING HOLIDAYS (KNOWN AS GRATUITY HOLIDAYS), OR WHO WORK MORE THAN HALF A DAY ON ONE SIDE AND ARE IN A PAY STATUS ON THE OTHER WILL BE ALLOWED THEIR REGULAR PAY FOR 8 HOURS FOR SUCH DAYS, IN ADDITION TO PAY FOR ANY WORK PERFORMED: JANUARY 1, FEBRUARY 22, MAY 30, JULY 4, LABOR DAY, THANKSGIVING DAY, AND DECEMBER 25. THE TERM "LABORER" IS INTERPRETED SO AS TO INCLUDE NOT ONLY EMPLOYEES DESIGNATED "LABORER" BUT ALSO ALL ALIEN HOURLY EMPLOYEES RECEIVING 40 CENTS OR LESS PER HOUR (CIR. 603 AND CIR. OF 6-30-26). (SEE 1.312, 42, 46.1, 46.2, 47.)

THE EMPLOYEE IN THIS CASE DID NOT "WORK" EITHER ON THE DAYS PRIOR OR SUBSEQUENT TO THE TWO HOLIDAYS IN QUESTION BUT WAS PAID FOR THOSE DAYS AS ON LEAVE. NOTWITHSTANDING THE GENERAL RULE STATED IN DECISIONS OF THIS OFFICE THAT LEAVE WITH PAY IS SYNONYMOUS WITH WORK OR A DUTY STATUS (SEE DECISION 17 COMP. GEN. 348, 351), THE APPLICATION OF THE EXECUTIVE ORDER IN QUESTION ADMINISTRATIVELY IN FORCE FOR SO MANY YEARS WILL NOT NOW BE DISTURBED. SWENDIG V. WASHINGTON CO., 265 U.S. 322, 331.

ACCORDINGLY, THE CLAIM OF THIS EMPLOYEE FOR COMPENSATION FOR ALL OF THE SATURDAYS, NONWORK DAYS, INCLUDING THE LEGAL HOLIDAYS ON DECEMBER 25, 1937, AND JANUARY 1, 1938, OCCURRING DURING THE PERIOD OF ANNUAL LEAVE OF ABSENCE MUST BE AND IS DISALLOWED.