B-15928, JUN. 14, 1966

B-15928, JUN. 14, 1966

TO MR. LEONARD CURRERI:

THIS REFERS TO YOUR LETTER OF FEBRUARY 11, 1966, WHICH REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF FEBRUARY 7, 1966, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF EIGHT DAYS ANNUAL LEAVE ALLEGED TO BE DUE AT DATE OF RETIREMENT AND FOR EXTRA PAY FOR WORKING ALL LEGAL HOLIDAYS DURING THE PERIOD JANUARY 1942 THROUGH DECEMBER 1945, AS ACIVILIAN EMPLOYEE OF THE NEW YORK NAVAL SHIPYARD.

THE FILE INDICATES THAT FOR THE PERIOD JANUARY 1942 THROUGH DECEMBER 1945, YOU WERE A WAGE BOARD EMPLOYEE AND DURING THIS PERIOD FOR THE HOLIDAYS WORKED YOU RECEIVED YOUR REGULAR PAY. YOU ARE OF THE OPINION THAT YOU SHOULD HAVE BEEN PAID EXTRA PAY FOR THE HOLIDAYS WORKED.

THE ONLY STATUTE REFERRING TO HOLIDAY PAY FOR WAGE BOARD EMPLOYEES, DURING THE PERIOD IN QUESTION, WAS THE ACT OF JUNE 29, 1938, 52 STAT. 1246, WHICH PROVIDED:

"THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

"SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C., TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.'

IT WILL BE OBSERVED THAT SAID STATUTE RELATES TO PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED AND AS IT SPECIFICALLY REPEALED A PRIOR STATUTE UNDER WHICH DOUBLE COMPENSATION FOR HOLIDAYS HAD BEEN AUTHORIZED, IT HAS BEEN CONSISTENTLY INTERPRETED BY THIS OFFICE AS AUTHORIZING ONLY AN ORDINARY DAY'S PAY FOR HOLIDAYS IRRESPECTIVE OF WHETHER WORKING OR NOT WORKING UNLESS THERE IS IN EXISTENCE DURING THE INVOLVED PERIOD A WAGE BOARD AGREEMENT PROVIDING FOR EXTRA PAY FOR EMPLOYEES WHO ARE REQUIRED TO WORK ON A LEGAL HOLIDAY. THE SUPREME COURT OF THE UNITED STATES HAS HELD TO THE SAME EFFECT. SEE UNITED STATES V. BERGH, 352 U.S. 40. THE RECORD INDICATES THAT A WAGE BOARD AGREEMENT WAS NOT IN EFFECT IN THE DEPARTMENT OF THE NAVY AUTHORIZING EXTRA PAY FOR WORK PERFORMED ON HOLIDAYS FOR EMPLOYEES OF YOUR CLASS DURING THE PERIOD IN QUESTION. THEREFORE, THERE IS NO AUTHORITY FOR ALLOWANCE OF EXTRA COMPENSATION FOR SUCH WORK.

CONCERNING YOUR CLAIM FOR LUMP-SUM PAYMENT OF ACCRUED LEAVE WHILE IN A SICK LEAVE STATUS THE RECORD SHOWS THAT YOU WERE MANDATORILY RETIRED ON APRIL 30, 1965, BECAUSE YOU HAD REACHED THE AGE OF 70 ON APRIL 22, 1965. YOU HAD ELECTED TO USE ALL OF YOUR ACCRUED ANNUAL LEAVE BEFORE TAKING SICK LEAVE STARTING DECEMBER 18, 1964. YOU WERE ON APPROVED SICK LEAVE THROUGH APRIL 30, 1965, AND THE ANNUAL LEAVE YOU REFER TO WAS EARNED WHILE YOU WERE ON SICK LEAVE. UNDER THE CIRCUMSTANCES YOU WERE ENTITLED UNDER THE LUMP-SUM LEAVE ACT OF 1944, 5 U.S.C. 61B TO PAYMENT FOR SUCH ANNUAL LEAVE UPON SEPARATION FROM THE SERVICE ON APRIL 30, 1965. ACCORDINGLY, A SETTLEMENT WILL ISSUE IN YOUR FAVOR IN THE AMOUNT FOUND DUE IN THE NEAR FUTURE.

YOUR SEPARATION FROM THE GOVERNMENT SERVICE WAS EFFECTED PURSUANT TO 5 U.S.C. 2255/A) WHICH READS IN PART AS FOLLOWS:

"* * * AN EMPLOYEE WHO SHALL HAVE ATTAINED THE AGE OF SEVENTY YEARS AND COMPLETED FIFTEEN YEARS OF SERVICE SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE. SUCH SEPARATION SHALL BE EFFECTIVE ON THE LAST DAY OF THE MONTH IN WHICH SUCH EMPLOYEE ATTAINS THE AGE OF SEVENTY YEARS * * *.'

SINCE YOU REACHED THE AGE OF SEVENTY YEARS ON APRIL 22, 1965, AND HAD MORE THAN FIFTEEN YEARS SERVICE IT WAS MANDATORY THAT YOUR SERVICES BE TERMINATED ON APRIL 30, 1965. THEREFORE, THE DEPARTMENT OF THE NAVY'S ACTION IN THAT RESPECT WAS PROPER.

CONCERNING YOUR QUESTION AS TO THE APPLICABILITY OF THE MANDATORY RETIREMENT LAW TO CONGRESSMEN AND SENATORS YOUR ATTENTION IS INVITED TO THOSE PROVISIONS OF CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2251/B) AND 2255/D) WHICH STATE THAT THE AUTOMATIC SEPARATION REQUIREMENT OF THE ACT DOES NOT APPLY TO MEMBERS OF CONGRESS. WE ARE NOT AWARE OF THE REASON FOR THAT EXEMPTION, BUT IT MAY BE BECAUSE THE MEMBERS ARE ELECTED OFFICIALS.

WE HOPE THE FOREGOING EXPLAINS THE VARIOUS MATTERS TO YOUR SATISFACTION.