B-108945, AUGUST 6, 1952, 32 COMP. GEN. 77

B-108945, AUGUST 6, 1952, 32 COMP. GEN. 77

COMPENSATION - EMPLOYEES SUBJECT TO WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES - PREMIUM PAY FOR HOLIDAY WORK ORDERS OF THE SECRETARY OF THE TREASURY ISSUED IN 1918 AUTHORIZING PREMIUM PAY FOR HOLIDAY WORK PERFORMED BY UNGRADED EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING WHICH CONSTITUTED AN EXERCISE OF ADMINISTRATIVE DISCRETION IN THE ABSENCE OF STATUTORY WAGE RATES FOR SUCH PAY, AFFORD NO BASIS FOR PAYMENT OF ADDITIONAL COMPENSATION FOR HOLIDAY WORK PERFORMED FROM MARCH 28, 1934, THE DATE OFFICIALS OF SAID BUREAU DISCONTINUED HOLIDAY PREMIUM PAY UNDER THE 1918 ORDERS. THERE IS NO BASIS FOR ALLOWING UNGRADED EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING WHO ARE PAID ON A PER DIEM, PER HOUR, OR PIECEWORK BASIS, GRATUITY PAY FOR HOLIDAYS IN ADDITION TO PAY FOR WORK PERFORMED AFTER JUNE 29, 1938, THE EFFECTIVE DATE OF PUBLIC RESOLUTION NO. 127, WHICH REPEALED THE JOINT RESOLUTION OF JANUARY 6, 1885, AS AMENDED, AND WHICH PROVIDED FOR GRATUITY PAY ONLY FOR HOLIDAYS ON WHICH EMPLOYEES WERE RELIEVED OR PREVENTED FROM WORKING BECAUSE OF THE HOLIDAY AND WHICH MADE NO PROVISION FOR SUCH PAY FOR HOLIDAYS ON WHICH WORK WAS PERFORMED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, AUGUST 6, 1952:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1952, REQUESTING AN OPINION AS TO WHETHER ,UNGRADED" EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING ARE ENTITLED TO ADDITIONAL COMPENSATION FOR WORK PERFORMED BY THEM ON HOLIDAYS DURING THE PERIOD MARCH 28, 1934, TO MARCH 29, 1946. YOU STATE THAT, AS A RESULT OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES ON JANUARY 2, 1952, IN THE CASE OF UNITED STATES V. KELLY, 342 U.S. 193, WHICH DETERMINED THAT EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WERE ENTITLED TO ADDITIONAL HOLIDAY COMPENSATION, THE UNGRADED EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING HAVE PRESENTED A CLAIM THAT THEY TOO ARE ENTITLED TO SUCH ADDITIONAL COMPENSATION FOR THE PERIOD MENTIONED.

THE REFERENCES HEREIN TO THE PERIOD MARCH 28, 1934, TO MARCH 29, 1946, MUST, OF COURSE, BE CONSIDERED AS QUALIFIED BY THE 10-YEAR PERIOD WITHIN WHICH CLAIMS MUST BE FILED IN THIS OFFICE, AS PROVIDED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

IT DOES NOT APPEAR THAT A DECISION UPON THE QUESTION PRESENTED IS DESIRED AS A PRECEDENT FOR FUTURE ADMINISTRATIVE ACTION SINCE THE CLAIMS INVOLVE A PRIOR PERIOD THE APPROPRIATIONS FOR THE PAYMENT OF WHICH HAVE LAPSED. THEREFORE, YOUR LETTER MAY NOT BE TREATED AS A REQUEST FOR AN ADVANCE DECISION UNDER THE PROVISIONS OF 31 U.S.C. 74. SEE LETTER OF JUNE 27, 1947, B-66915, INVOLVING A SOMEWHAT SIMILAR PRESENTATION RELATIVE TO EMPLOYEES OF THE BUREAU OF THE MINT. HOWEVER, SINCE NUMEROUS CLAIMS OF THE NATURE HERE INVOLVED HAVE BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE DIRECTLY FROM THE CLAIMANTS FOR SETTLEMENT UNDER THE PROVISIONS OF 31 U.S.C. 71, AND SINCE IT IS ASSUMED THAT THE REPORT OF YOUR DEPARTMENT UPON SUCH CLAIMS WOULD FOLLOW THE LINES OF YOUR LETTER, IT IS DEEMED APPROPRIATE TO STATE IN REPLY WHAT THE DISPOSITION OF SUCH CLAIMS IN THIS OFFICE WILL BE.

IT APPEARS FROM YOUR LETTER THAT, IN 1918, PURSUANT TO TWO ORDERS OF THE SECRETARY OF THE TREASURY--- COPIES OF WHICH ACCOMPANIED YOUR LETTER--- ISSUED AS A RESULT OF A PETITION IN BEHALF OF THE EMPLOYEES BY A REPRESENTATIVE OF THE AMERICAN FEDERATION OF LABOR, THERE WAS INAUGURATED THE PRACTICE OF PAYING PER DIEM, PER HOUR, AND PIECEWORK (PLATE PRINTERS) EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING TIME AND ONE-HALF FOR OVERTIME, SUNDAY AND HOLIDAY WORK. THE EMPLOYEES CONCERNED WERE OF THE CLASS NOW COMMONLY REFERRED TO AS "WAGE BOARD" EMPLOYEES, THEIR RATES OF PAY HAVING BEEN FIXED BY THE SECRETARY RATHER THAN BY LAW. AT THE TIME THERE WAS NO SPECIFIC LAW GOVERNING THE PAYMENT OF OVERTIME COMPENSATION.

IN ADDITION TO THE TIME AND ONE-HALF FOR WORK ON HOLIDAYS, AS PROVIDED IN THE ORDERS, THE EMPLOYEES WERE PAID "GRATUITY" PAY FOR THE HOLIDAYS NAMED IN THE ACT OF JANUARY 6, 1885, STAT. 516, AS AMENDED, MAKING A TOTAL OF 2 1/2 DAYS' PAY FOR WORK ON THE HOLIDAY, IN ACCORDANCE WITH THE INTERPRETATION OF THE ACT BY THE ACCOUNTING OFFICERS. 13 COMP. DEC. 40; 3 COMP. GEN. 411.

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDED FOR THE FIRST TIME A STATUTORY BASIS FOR THE PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEES IN THE SEVERAL TRADES AND OCCUPATIONS WHOSE WAGES WERE SET BY BOARDS OR OTHER WAGE-FIXING AUTHORITIES. COMPTROLLER GENERAL MCCARL CONSTRUED SUCH STATUTORY PROVISION AS ABROGATING THE PRIOR PRACTICES RELATIVE TO COMPENSATION FOR OVERTIME, SUNDAY, AND HOLIDAY WORK SO FAR AS THEY WERE IN CONFLICT WITH THE TERMS OF THE STATUTE, AND HELD THAT ONLY TWICE THE REGULAR RATE OF COMPENSATION (GRATUITY PAY PLUS STRAIGHT TIME RATHER THAN TIME AND ONE-HALF) COULD BE PAID FOR WORK ON LEGAL HOLIDAYS WITHIN THE REGULAR TOUR OF DUTY OF NOT MORE THAN 40 HOURS ESTABLISHED PURSUANT TO THE STATUTE; THAT IS, WHERE THE HOLIDAY WORK DID NOT CONSTITUTE "OVERTIME" WITHIN THE MEANING OF THE STATUTE. 13 COMP. GEN. 295; ID. 370. YOU STATE THAT IN ACCORDANCE WITH SUCH INTERPRETATION OFFICIALS OF THE BUREAU OF ENGRAVING AND PRINTING DISCONTINUED PAYING TIME AND ONE-HALF FOR HOLIDAY WORK, AND THEREAFTER, UNTIL 1938, EMPLOYEES RECEIVED HOLIDAY GRATUITY PAY PLUS STRAIGHT TIME FOR HOLIDAYS WORKED.

BY PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, IT WAS PROVIDED THAT, WHENEVER EMPLOYEES PAID UPON A PER DIEM, PER HOUR, OR PIECEWORK BASIS ARE "RELIEVED OR PREVENTED FROM WORKING" SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY, THEY SHOULD RECEIVE THE SAME PAY AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED. THE DECISIONS OF THIS OFFICE CONSISTENTLY HAVE HELD THAT WHEN EMPLOYEES WITHIN THE PURVIEW OF THAT LAW WORK ON A HOLIDAY (THAT IS, WHEN NOT "RELIEVED OR PREVENTED FROM WORKING)," THEY ARE NOT ENTITLED AS A MATTER OF LAW TO GRATUITY PAY IN ADDITION TO THE PAY FOR WORK DONE. 18 COMP. GEN. 186; ID. 191; ID. 206. YOU INDICATE THAT OFFICIALS OF THE BUREAU OF ENGRAVING AND PRINTING THEN DISCONTINUED PAYMENT OF GRATUITY PAY TO EMPLOYEES WHO WORKED ON A HOLIDAY AND PAID ONLY STRAIGHT TIME.

IN DECISION OF FEBRUARY 7, 1946, 25 COMP. GEN. 584, WHICH YOU CITE, IT WAS HELD THAT, IN VIEW OF THE DIFFERENTIATION IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, BETWEEN PREMIUM PAY FOR HOLIDAY WORK AND FOR OVERTIME WORK, INDICATING A RESTRICTIVE MEANING OF THE WORD "OVERTIME," THE OVERTIME COMPENSATION PROVISION OF THE 1934 STATUTE NO LONGER WAS REQUIRED TO BE CONSTRUED AS PRECLUDING ADMINISTRATIVE REGULATIONS PROVIDING FOR PREMIUM RATES OF PAY FOR WORK PERFORMED ON HOLIDAYS BY WAGE- BOARD EMPLOYEES. AS A RESULT OF THAT DECISION, THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY APPROVED ON MARCH 29, 1946, A RECOMMENDATION OF THE TREASURY DEPARTMENT WAGE BOARD FOR THE PAYMENT OF PREMIUM PAY FOR HOLIDAY WORK AT THE RATE OF TIME AND ONE-HALF; AND ON JULY 10, 1946, THE RATE WAS CHANGED TO DOUBLE TIME.

IN THE CASE OF JOHN STUART KELLY, ET AL. V. UNITED STATES, A GROUP OF GOVERNMENT PRINTING OFFICE EMPLOYEES, SUED IN THE COURT OF CLAIMS TO RECOVER ADDITIONAL COMPENSATION FOR WORK ON HOLIDAYS WHICH HAD BEEN DECLARED TO BE REGULAR WORKDAYS DURING WORLD WAR II, UNDER THE TERMS OF A WAGE AGREEMENT ORIGINALLY ENTERED INTO IN 1924 PURSUANT TO THE ACT OF JUNE 7, 1924, 43 STAT. 658. THE WAGE AGREEMENT PROVIDED, IN PERTINENT PART, AS FOLLOWS:

EMPLOYEES REQUIRED TO WORK ON A LEGAL HOLIDAY OR A SPECIAL HOLIDAY DECLARED BY EXECUTIVE ORDER SHALL BE PAID AT THE DAY RATE PLUS 50 PERCENT FOR ALL THE TIME ACTUALLY EMPLOYED IN ADDITION TO THEIR GRATUITY PAY FOR THE HOLIDAY AS PROVIDED BY LAW. * * *

THE COURT HELD (119 C.1CLS. 197) THAT (1) THE EMPLOYEES WERE ENTITLED TO HOLIDAY GRATUITY PAY UNDER PUBLIC RESOLUTION NO. 127, SUPRA, IN ADDITION TO PAY FOR ACTUAL WORK ON THE HOLIDAYS, AND (2) SECTION 23 OF THE ACT OF MARCH 28, 1934, DID NOT RENDER INEFFECTIVE THE PROVISIONS OF THE WAGE AGREEMENT CALLING FOR PAYMENT OF THE DAY RATE PLUS 50 PERCENT FOR HOLIDAY WORK. THE DECISION UPON THE SECOND POINT WAS NOT FURTHER CONTESTED IN THE COURTS BY THE GOVERNMENT BUT THE DECISION UPON THE FIRST WAS SUBMITTED ON CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES, WHICH HELD TO THE EFFECT THAT, ASIDE FROM WHETHER THE 1938 LAW PROVIDED GRATUITY PAY FOR HOLIDAYS WORKED, THE EMPLOYEES WERE ENTITLED TO SUCH PAY UNDER THE WAGE AGREEMENT.

THE CLAIM OF THE BUREAU OF ENGRAVING AND PRINTING EMPLOYEES APPEARS TO BE BASED UPON THE CONTENTION THAT THE ORDERS OF THE SECRETARY IN 1918 AUTHORIZING PREMIUM PAY (TIME AND ONE-HALF) FOR HOLIDAY WORK AND THE PRACTICE WITH RESPECT TO GRATUITY PAY UNDER JOINT RESOLUTION OF JANUARY 6, 1885, AS AMENDED, PRIOR TO JUNE 29, 1938, HAVE THE SAME LEGAL EFFICACY AS THE AGREEMENT CONSIDERED IN THE COURT DECISIONS RESPECTING GOVERNMENT PRINTING OFFICE EMPLOYEES.

SUCH IS NOT THE CASE, HOWEVER. THE AGREEMENT CONSIDERED BY THE COURTS CAME INTO BEING AS A RESULT OF A CONFERENCE BETWEEN THE EMPLOYEES AND THE PUBLIC PRINTER AND APPROVAL BY THE JOINT COMMITTEE ON PRINTING, AS SPECIFICALLY PROVIDED BY THE ACT OF JUNE 7, 1924. THE WAGE RATES DETERMINED IN ACCORDANCE WITH THE STATUTE ARE NOT SUBJECT TO CHANGE OFTENER THAN ONCE EACH YEAR. IT IS EVIDENT FROM THE SUPREME COURT'S DECISION THAT THE COURT CONSIDERED THE PROVISION RESPECTING PAY FOR HOLIDAY WORK AS REMAINING IN EFFECT UNTIL CHANGED IN THE MANNER PRESCRIBED BY THE STATUTE. ON THE OTHER HAND, THE WAGE RATES OF BUREAU OF ENGRAVING AND PRINTING EMPLOYEES DURING THE PERIOD HERE INVOLVED WERE NOT FIXED UNDER ANY STATUTE SIMILAR IN EFFECT TO THAT OF THE 1924 STATUTE. SUCH WAGE RATES WERE SOLELY IN THE DISCRETION OF THE SECRETARY OF THE TREASURY UNDER THE SPECIFIC AUTHORITY GRANTED IN ANNUAL APPROPRIATION ACTS OR THE GENERAL AUTHORITY RECOGNIZED BY THE EXCEPTIONS IN SECTION 5 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1489.

IT IS CONTENDED THAT THE 1918 ORDERS OF THE SECRETARY REMAINED IN FULL FORCE AND EFFECT UNTIL ,LAWFULLY CHANGED," AND THAT NO CHANGE WAS AUTHORIZED BY THE SECRETARY UNTIL MARCH 29, 1946. THAT CONTENTION CANNOT BE SUSTAINED. THE ACT OF JUNE 4, 1897, 30 STAT. 18, PROVIDES THAT THE BUSINESS OF THE BUREAU OF ENGRAVING AND PRINTING SHALL BE UNDER THE IMMEDIATE CONTROL OF THE DIRECTOR OF SAID BUREAU, SUBJECT TO THE DIRECTION OF THE SECRETARY OF THE TREASURY. IT MUST BE PRESUMED THAT THE DISCONTINUANCE IN 1934 OF HOLIDAY PREMIUM PAY BY "OFFICIALS OF THE BUREAU OF ENGRAVING AND PRINTING" (QUOTING FROM YOUR LETTER) WAS WITH THE KNOWLEDGE AND CONSENT OF THE SECRETARY AND CONSTITUTED, IN LEGAL EFFECT, AN ABROGATION OF THE 1918 ORDERS BY DIRECTION OF THE SECRETARY WITHIN THE MEANING OF THE PROVISIONS OF THE 1897 ACT JUST CITED AND THE VARIOUS ANNUAL APPROPRIATIONS RELATIVE TO THE RATES OF PAY OF CERTAIN CLASSES OF BUREAU OF ENGRAVING AND PRINTING EMPLOYEES, IN THE ABSENCE OF EVIDENCE OF REAFFIRMATION OF THE ORDERS BY THE SECRETARY DURING THE PERIOD INVOLVED--- THERE HAVING BEEN NO REQUIREMENT OF FORMALITY EITHER IN THE FIXING OR THE CHANGING OF WAGE RATES. ACCORDINGLY, THE 1918 ORDERS MAY NOT BE CONSIDERED AS A BASIS FOR ALLOWING AT THIS LATE DATE CLAIMS FOR PREMIUM PAY FOR WORK ON HOLIDAYS BETWEEN MARCH 28, 1934, AND MARCH 29, 1946.

AS TO GRATUITY PAY FOR HOLIDAYS IN ADDITION TO PAY FOR WORK DONE, THAT PAY, SO FAR AS CONCERNS THE EMPLOYEES HERE INVOLVED, WAS ENTIRELY A MATTER OF STATUTE AND WAS NOT PAYABLE AS A RESULT OF ANY WAGE AGREEMENT ENTERED INTO PURSUANT TO LAW, SUCH AS THE ONE HELD BY THE SUPREME COURT TO ENTITLE GOVERNMENT PRINTING OFFICE EMPLOYEES TO GRATUITY PAY SEPARATE AND APART FROM THE SPECIFIC STATUTES UPON THE SUBJECT. THAT IS TO SAY, BUREAU OF ENGRAVING AND PRINTING EMPLOYEES WERE PAID GRATUITY PAY FOR HOLIDAYS IN ADDITION TO PAY FOR WORK DONE AS A MATTER OF RIGHT UNDER JOINT RESOLUTION OF JANUARY 6, 1885, AS AMENDED, RATHER THAN AS THE RESULT OF ANY ADMINISTRATIVE ACTION. 13 COMP. DEC. 40 AND 3 COMP. GEN. 411, CITED ABOVE. OF COURSE, UPON REPEAL OF THE 1885 LAW BY PUBLIC RESOLUTION NO. 127, THE RIGHT FORMERLY ENJOYED UNDER THE REPEALED LAW NO LONGER EXISTED AND THEREAFTER GRATUITY PAY FOR HOLIDAYS WAS PAYABLE ONLY IN ACCORDANCE WITH THE TERMS OF SAID PUBLIC RESOLUTION WHICH, AS HAS BEEN INDICATED ABOVE, MADE NO PROVISION FOR PAYMENT FOR HOLIDAYS WORKED BUT ONLY FOR HOLIDAYS ON WHICH EMPLOYEES WERE RELIEVED OR PREVENTED FROM WORKING BECAUSE OF THE OCCURRENCE OF THE HOLIDAY. IT MUST BE HELD, THEREFORE, THAT THERE IS NO BASIS FOR ALLOWING TO UNGRADED EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING PAID UPON A PER DIEM, PER HOUR, OR PIECEWORK BASIS GRATUITY PAY FOR HOLIDAYS AFTER JUNE 29, 1938, IN ADDITION TO PAY FOR WORK DONE.

THE FACT, AS INDICATED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, THAT ON OCCASION CONGRESSIONAL COMMITTEES MAY HAVE CONSIDERED THE PAY OF EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING AND THE GOVERNMENT PRINTING OFFICE ON A PARITY CAN HAVE NO EFFECT UPON THE DISPOSITION OF THE CLAIMS IN THIS CASE, IN THE ABSENCE OF A STATUTE PROVIDING FOR ASSIMILATION OF THE PAY OF THE TWO GROUPS.

IN ACCORDANCE WITH THE FOREGOING, CLAIMS OF THE NATURE DISCUSSED HEREIN NOW PENDING IN THE GENERAL ACCOUNTING OFFICE WILL BE DISALLOWED WITHOUT FURTHER DEVELOPMENT. CF. 31 COMP. GEN. 370.