B-148794, APR. 12, 1965

B-148794, APR. 12, 1965

TO MR. RUSSELL LAMBER:

YOUR LETTER OF MARCH 15, 1965, REQUESTS REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENTS OF MARCH 9, 1965, WHICH DISALLOWED YOUR CLAIMS FOR SEVERAL ITEMS OF COMPENSATION WHICH WERE INCLUDED IN YOUR RESPECTIVE LETTERS OF FEBRUARY 29, 1964.

THE ITEMS CLAIMED BY YOU WERE (1) HOLIDAY PAY UNDER THE ACT OF SEPTEMBER 22, 1959, PUB.L. 86-362, 73 STAT. 643, 5 U.S.C. 87C, FOR CERTAIN HOLIDAYS BEGINNING WITH NOVEMBER 11, 1959, AND ENDING WITH MAY 30, 1961; (2) REFUND OF MANDATORY MEAL DEDUCTIONS FOR 5 DAYS A WEEK ON A 12-MONTH OR 52-WEEK BASIS COVERING A PERIOD OF 7 YEARS EVEN THOUGH YOUR WORK-WEEK CONSISTED OF ONLY 4 DAYS; (3) MANDATORY MEAL DEDUCTIONS FOR DAYS ON WHICH YOU WERE ON ANNUAL LEAVE, ALSO COVERING A PERIOD OF 7 YEARS, AND (4) OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 8 HOURS A DAY. ALL OF THE ABOVE-MENTIONED ITEMS WERE DISALLOWED BY OFFICE SETTLEMENTS OF MARCH 9, 1965.

CONCERNING ITEM (1) WE FIND THAT YOU ARE ENTITLED TO HOLIDAY PREMIUM PAY FOR MAY 30, 1961. OUR CLAIMS DIVISION IS BEING INSTRUCTED TODAY TO STATE SETTLEMENTS IN YOUR FAVOR FOR THE AMOUNTS DUE. A FURTHER REPORT IS BEING OBTAINED FROM THE DEPARTMENT OF THE NAVY REGARDING YOUR CLAIMS FOR HOLIDAY PAY ON NOVEMBER 11, 1959, AND YOU WILL BE FURTHER ADVISED AS TO THIS ITEM.

YOUR CLAIM FOR 1 HOUR OF HOLIDAY PREMIUM PAY ON VARIOUS DATES IN 1960 APPARENTLY IS FOR HOLIDAYS FALLING ON YOUR SCHEDULED 7-HOUR DAY ON WHICH YOU ACTUALLY WORKED BUT 7 HOURS. YOUR POSITIONS ARE IN THE CATEGORY DESIGNATED AS WAGE BOARD OR UNGRADED. UNDER ESTABLISHED LAW HOLIDAY PREMIUM PAY BENEFITS FOR EMPLOYEES IN THOSE POSITIONS ARE FIXED BY REGULATION OF THE HEAD OF THE DEPARTMENT CONCERNED RATHER THAN BY STATUTE. THAT ADMINISTRATIVE AUTHORITY IN THE DEPARTMENT OF THE NAVY DERIVES FROM THE ACT OF AUGUST 10, 1956, 10 U.S.C. 7474. THAT SECTION OF THE ACT PROVIDES:

"THE SECRETARY OF THE NAVY SHALL ESTABLISH RATES OF WAGES FOR EMPLOYEES OF EACH NAVAL ACTIVITY WHERE THE RATES ARE NOT ESTABLISHED BY OTHER PROVISIONS OF LAW TO CONFORM, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST, WITH THOSE PRIVATE ESTABLISHMENTS IN THE IMMEDIATE CINITY.'

NEVERTHELESS, NAVAL CIVILIAN PERSONNEL INSTRUCTION 610.6, AN ADMINISTRATIVE REGULATION, IS PATTERNED AFTER THE STATUTE APPLICABLE TO EMPLOYEES UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 68 STAT. 1110, 5 U.S.C. 922. IN PERTINENT PART THE LATTER ACT READS AS FOLLOWS:

"/A) ALL WORK NOT EXCEEDING EIGHT HOURS * * * SHALL BE COMPENSATED AT THE RATE OF BASIC COMPENSATION OF THE OFFICER OR EMPLOYEE PERFORMING SUCH WORK ON A HOLIDAY PLUS PREMIUM COMPENSATION AT A RATE EQUAL TO THE RATE OF BASIC COMPENSATION OF SUCH OFFICER OR EMPLOYEE.'

THE 1945 STATUTE LONG HAS BEEN CONSTRUED TO PROVIDE PREMIUM COMPENSATION ONLY FOR HOURS--- ABOVE THE MINIMUM OF 2 AND NOT EXCEEDING 8--- ACTUALLY WORKED ON A HOLIDAY. SEE 25 COMP. GEN. 475. THE NAVY REGULATION PROVIDES NO GREATER BENEFIT FOR WAGE BOARD EMPLOYEES AND, THEREFORE, YOU WERE ENTITLED ONLY TO 7 HOURS PREMIUM COMPENSATION FOR 7 HOURS OF ACTUAL WORK ON HOLIDAYS. SIMILARLY, BY VIRTUE OF THE REGULATION YOU COULD NOT BE ALLOWED PREMIUM COMPENSATION FOR HOURS IN EXCESS OF 8 FOR HOLIDAYS ON WHICH YOUR SCHEDULED TOUR WAS 11 HOURS.

REGARDING ITEM (2), THAT IS, MEALS FURNISHED YOU AT THE HOSPITAL, THE ACT OF MARCH 5, 1928, 45 STAT. 193 (NOW REPEALED BY PUB.L. 88-459, APPROVED AUGUST 20, 1964, 78 STAT. 557, 5 U.S.C. 3121 AND FOLLOWING), PROVIDED IN PART AS FOLLOWS:

"SEC. 3. THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS FOR THE FISCAL YEAR 1929 AND THEREAFTER OF THE CHARACTER HERETOFORE USED FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFOR: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.'

THAT STATUTE CONTEMPLATES THAT THE REASONABLE VALUE OF SUBSISTENCE FURNISHED EMPLOYEES BE DEDUCTED FROM THEIR COMPENSATION. THE DEPARTMENT OF THE NAVY IN DETERMINING BY REGULATION THE REASONABLE VALUE OF 5 MEALS A WEEK FOR 11 MONTHS A YEAR ARRIVED AT A VALUE OF 55 CENTS A MEAL. THUS, THERE WAS A PREDETERMINED ALLOWANCE OF 1 MONTH BUILT INTO THE ANNUAL MEAL CHARGE TO OFFSET MEALS LOST WHEN AN EMPLOYEE WAS ABSENT ON ANNUAL LEAVE AND ON SICK LEAVE FOR PERIODS OF 10 CONSECUTIVE DAYS OR LESS. FOR COMPARABLE PRACTICES SEE 21 COMP. GEN. 663. CF. 29 COMP. GEN. 153. THEREFORE, WE MUST CONCLUDE THAT DEDUCTIONS FOR MEALS ARE PROPER WHEN AN EMPLOYEE IS ABSENT ON ANNUAL LEAVE OR SICK LEAVE WITHIN THE LIMITATION.

ITEM (3) STEMS FROM THE FACT THAT YOUR WEEKLY DUTY TOUR CONSISTED OF ONLY 4 DAYS. HOWEVER, YOU WERE AFFORDED AN OPPORTUNITY TO PARTAKE OF 2 MEALS ON ONE OF THE WORKDAYS THUS BEING OFFERED 5 MEALS A WEEK. WE CANNOT FIND THAT THIS PRACTICE WAS SO ARBITRARY, CAPRICIOUS OR LACKING IN REASON AS TO JUSTIFY US IN CONCLUDING THAT IT WAS UNLAWFUL. WITH THE EFFECTIVE DATE OF THE WORK HOURS ACT OF 1962, 76 STAT. 360, 5 U.S.C. 673C, YOUR WEEKLY TOUR WAS CHANGED TO 5 DAYS OF 8 HOURS EACH AND WE DO NOT UNDERSTAND THAT YOUR COMPLAINT EXTENDS BEYOND THAT DATE.

YOUR CLAIM UNDER ITEM (4) APPEARS TO BE PREDICATED UPON AN ERRONEOUS ASSUMPTION THAT WORK IN EXCESS OF 8 HOURS A DAY WAS COMPENSABLE AT OVERTIME RATES PRIOR TO THE EFFECTIVE DATE OF THE ABOVE-CITED WORK HOURS ACT OF 1962. ALL HOURS IN EXCESS OF 40 HOURS A WEEK WERE REQUIRED TO BE COMPENSATED AT OVERTIME RATES UNDER THE ACT OF MARCH 28, 1934, 48 STAT. 522, AS AMENDED (SEE FORMER 5 U.S.C. 673C). HOWEVER, THERE WAS NO PRIOR AUTHORITY TO PAY WAGE BOARD EMPLOYEES FOR HOURS OF WORK IN EXCESS OF 8 HOURS A DAY. THEREFORE, YOU ARE NOT ENTITLED TO OVERTIME COMPENSATION UNDER THIS ITEM.

WITH THE EXCEPTION OF THE HOLIDAY PREMIUM PAY FOR MAY 30, 1961, AND POSSIBLY FOR NOVEMBER 11, 1959, WHICH WILL BE THE SUBJECT OF SEPARATE ACTION, THE CONCLUSION REACHED IN OUR OFFICE SETTLEMENTS OF MARCH 9, 1965, ARE FOUND TO BE CORRECT AND UPON REVIEW MUST BE SUSTAINED.