B-39413, JANUARY 25, 1944, 23 COMP. GEN. 541

B-39413, JANUARY 25, 1944, 23 COMP. GEN. 541

COMPENSATION - SUSPENSION FROM DUTY WITHOUT PAY ON SUNDAYS IN VIEW OF THE FACT THAT A PER ANNUM EMPLOYEE IS PAID HIS BASIC COMPENSATION, AT LEAST, FOR EVERY DAY OF THE YEAR INCLUDING SUNDAYS EVEN THOUGH HE IS NOT REQUIRED TO WORK REGULARLY ON SUNDAYS, AND AS SUCH AN EMPLOYEE, IF WITHIN THE PURVIEW OF THE WAR OVERTIME PAY ACT OF 1943, IS PAID, ALSO, HIS PRO RATA OVERTIME COMPENSATION FOR SUNDAYS ALTHOUGH HE PERFORMS NO WORK ON THAT DAY, IT IS WITHIN ADMINISTRATIVE DISCRETION TO SUSPEND A PER ANNUM EMPLOYEE ON SUNDAYS AND WITHHOLD, AS A DISCIPLINARY MEASURE, THE COMPENSATION HE OTHERWISE WOULD HAVE RECEIVED FOR SUNDAYS HAD HE NOT BEEN SUSPENDED FROM WORKING OR THE OPPORTUNITY OF WORKING ON SUNDAYS. THE ACT OF FEBRUARY 24, 1931, 46 STAT. 1415, WHICH PROHIBITS THE "WITHHOLDING OR CONFISCATION OF EARNED PAY, SALARY OR EMOLUMENT OF ANY CIVIL EMPLOYEE OF THE UNITED STATES REMOVED FOR CAUSE," DOES NOT HAVE THE EFFECT OF RENDERING ILLEGAL AN ADMINISTRATIVE ACTION SUSPENDING AN EMPLOYEE FROM DUTY WITHOUT COMPENSATION OR WITHHOLDING COMPENSATION FOR NON-WORKDAYS FOR DISCIPLINARY REASONS WHILE THE EMPLOYEE REMAINS ON THE ROLL.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JANUARY 25, 1944:

I HAVE YOUR LETTER OF JANUARY 8, 1944, AS FOLLOWS:

FOR MANY YEARS IT HAS BEEN THE PRACTICE IN THE FEDERAL SERVICE TO ENFORCE DISCIPLINE ON CIVILIAN OFFICERS AND EMPLOYEES THROUGH THE MEDIUM OF SUSPENSIONS FROM DUTY WITHOUT PAY. THE PRACTICE HAS THE DISADVANTAGE OF DENYING TO THE EMPLOYING DEPARTMENT THE EMPLOYEE'S SERVICES DURING THE SUSPENSION PERIOD. THIS LATTER FACTOR IS OF PARTICULAR IMPORTANCE AT THIS TIME IN VIEW OF THE CRITICAL SHORTAGE OF PERSONNEL.

AS A RESULT OF THIS SHORTAGE THE PRACTICE HAS GROWN UP IN MANY FEDERAL OFFICES AND ESTABLISHMENTS OF SUSPENDING PER ANNUM EMPLOYEES ON SUNDAYS OR OTHER DAYS WHICH ARE OUTSIDE THEIR TOUR OF DUTY AND ON WHICH THEY ARE NOT REQUIRED TO WORK. THIS PRACTICE HAS THE EFFECT OF IMPOSING THE DESIRED DISCIPLINARY PENALTY WHILE SAVING THE PRODUCTION TIME WHICH WOULD OTHERWISE BE LOST IF ENFORCED IDLENESS WAS REQUIRED ON A NORMAL WORK DAY.

WHILE THE PRACTICE REFERRED TO UNDOUBTEDLY HAS DEFINITE PRACTICAL ADVANTAGES, THERE IS A REASONABLE DOUBT AS TO ITS LEGALITY. IN VIEW OF THE FACT THAT WIDESPREAD USE OF THE DEVICE MIGHT RESULT IN A LARGE NUMBER OF CLAIMS FOR COMPENSATION WITHHELD AS A RESULT OF SUSPENSIONS ON NON-WORK DAYS, AND IN ORDER THAT THE LEGALITY AND PROPRIETY OF THIS PRACTICE MAY BE CLARIFIED AND THIS TYPE OF CLAIM ELIMINATED, YOUR DECISION ON THE QUESTION IS SOLICITED.

ONLY ONE PRECEDENT HAS BEEN DISCOVERED WHICH GIVES INDICATION OF THE LEGAL POSITION OF THE EMPLOYEE IN CASES OF THIS KIND. IN 18 COMP. DEC. 408 IT WAS HELD (QUOTE FROM THE SYLLABUS):

"THE POSTMASTER GENERAL IS AUTHORIZED TO SUSPEND A RAILWAY CLERK FROM DUTY WITHOUT PAY DURING SAID CLERK'S LAY-OFF PERIODS AND REQUIRE SUCH CLERK TO WORK ON ALL WORK DAYS.'

WHILE IT WOULD APPEAR FROM THE ABOVE QUOTED DECISION THAT THE CURRENT PRACTICE WAS CLEARLY UPHELD, IT IS PERTINENT TO POINT OUT THAT THIS DECISION WAS BASED TO A LARGE EXTENT ON SECTION 1472 OF THE POSTAL LAWS AND REGULATIONS WHICH WERE IN EFFECT AT THAT TIME AND WHICH WAS INTERPRETED TO MEAN THAT THE ENTIRE TIME OF POSTAL CLERKS WAS AT THE DISPOSAL OF THE DEPARTMENT. THEREFORE, AN EMPLOYEE COULD BE REQUIRED TO WORK ON HIS LAY-OFF DAY WITHOUT ADDITIONAL COMPENSATION. IT WAS CLEARLY WITHIN THE POWER OF THE POSTMASTER GENERAL TO SUSPEND AN EMPLOYEE WITHOUT PAY ON A DAY ON WHICH HE COULD HAVE BEEN REQUIRED TO WORK.

UNDER EXISTING LAWS AND REGULATIONS, MOST OF THE PER ANNUM EMPLOYEES IN THIS DEPARTMENT HAVE BEEN ASSIGNED A REGULAR TOUR OF DUTY SIX DAYS PER WEEK WITH A REGULAR DAY OFF. IF WORK IS REQUIRED ON THAT DAY, THERE IS A STATUTORY REQUIREMENT IN THE WAR OVERTIME PAY ACT OF 1943, THAT OVERTIME COMPENSATION BE PROVIDED. TO THAT EXTENT THE FACTS OF THE PRESENT SITUATION DIFFER FROM THOSE WHICH OBTAINED AT THE TIME OF THE DECISION OF THE COMPTROLLER OF THE TREASURY. BECAUSE OF THE POSTAL REGULATIONS REFERRED TO ABOVE, THE POSTAL CLERK'S CONTENTION THAT HE HAD BECOME ENTITLED TO PAY FOR THE LAY-OFF DAY BY VIRTUE OF HAVING WORKED ON ALL ASSIGNED WORKDAYS WAS HELD TO BE WITHOUT MERIT. SUBSEQUENT DEVELOPMENTS, AS OUTLINED ABOVE, ESTABLISH DEFINITE NON WORKDAYS AND PROVIDE OVERTIME COMPENSATION FOR WORK PERFORMED OUTSIDE THE REGULAR TOUR OF DUTY, LEAVING SOME DOUBT AS TO THE CONTINUED EFFECTIVENESS OF THE EARLIER DECISION.

YOUR ADVICE AS TO WHETHER YOU WOULD BE REQUIRED TO RECOGNIZE A CLAIM AGAINST THE UNITED STATES FOR SALARY WITHHELD FROM A PER ANNUM EMPLOYEE AS A RESULT OF SUSPENSION ON A NON-WORKDAY WILL BE APPRECIATED.

THE DECISIONS OF THIS OFFICE CONSISTENTLY HAVE RECOGNIZED THE RIGHT OF AN ADMINISTRATIVE OFFICE TO SUSPEND AN EMPLOYEE FROM DUTY WITHOUT COMPENSATION AS A DISCIPLINARY MEASURE. 7 COMP. GEN. 584, 757; 17 ID. 199; 18 ID. 136. THE DECISION OF JANUARY 29, 1942, 21 COMP. GEN. 717, HELD THAT THE ACT OF JUNE 28, 1940, 54 STAT. 679, AUTHORIZING THE REMOVAL OF EMPLOYEES ON ACCOUNT OF SUBVERSIVE ACTIVITIES, INCLUDED, ALSO, THE AUTHORITY TO SUSPEND EMPLOYEES PENDING INVESTIGATION OF SUSPECTED SUBVERSIVE ACTIVITIES. IN THAT DECISION, AFTER QUOTING SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 555, IT WAS STATED:

THE USUAL PROCEDURE UNDER THAT STATUTE IS: FIRST, TO SUSPEND AN EMPLOYEE FROM ACTIVE DUTY PENDING INVESTIGATION OF THE CHARGES OF OFFICIAL MISCONDUCT, AND SECOND, EITHER TO RESTORE THE EMPLOYEE TO ACTIVE DUTY IF THE CHARGES CANNOT BE SUSTAINED, OR TO REMOVE HIM FROM THE SERVICE IF THE CHARGES ARE SUSTAINED. AS YOU STATE, IT IS THE SETTLED RULE THAT--- IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION THEREFOR--- COMPENSATION MAY NOT BE PAID FOR THE PERIOD OF SUSPENSION DURING WHICH NO DUTY IS PERFORMED, WHETHER THE EMPLOYEE IS OR IS NOT RESTORED TO DUTY, EXCEPT TO THE EXTENT OF ANNUAL LEAVE THAT MAY BE SUBSTITUTED FOR A PERIOD OF UNJUSTIFIED SUSPENSION. SEE 4 COMP. GEN. 849; 6 ID. 534; 9 ID. 284; 19 ID. 424. AS TO THE SUBSTITUTION OF ANNUAL LEAVE FOR THE PERIOD OF SUSPENSION, SEE 17 COMP. GEN. 199; 18 ID. 136. SEE, ALSO, 23 COMP. GEN. 204.

WHILE THE ACT OF FEBRUARY 24, 1931, 46 STAT. 1415, PROHIBITS THE "WITHHOLDING OR CONFISCATION OF EARNED PAY, SALARY OR EMOLUMENT OF ANY CIVIL EMPLOYEE OF THE UNITED STATES REMOVED FOR CAUSE" (ITALICS SUPPLIED/- -- AND RENDERED INOPERATIVE THE RULE TO THE CONTRARY STATED IN CERTAIN DECISIONS OF THIS OFFICE (SEE PARTICULARLY 9 COMP. GEN. 449/ -- THAT STATUTE DOES NOT HAVE THE EFFECT OF RENDERING ILLEGAL AN ADMINISTRATIVE ACTION SUSPENDING AN EMPLOYEE FROM DUTY WITHOUT COMPENSATION OR WITHHOLDING COMPENSATION FOR NON-WORKDAYS FOR DISCIPLINARY REASONS WHILE THE EMPLOYEE REMAINS ON THE ROLL.

A PER ANNUM EMPLOYEE IS PAID HIS BASIC COMPENSATION, AT LEAST, FOR EVERY DAY OF THE YEAR INCLUDING SUNDAYS EVEN THOUGH HE BE NOT REQUIRED TO WORK REGULARLY ON SUNDAYS. SUCH EMPLOYEES MAY BE DIRECTED TO WORK ON SUNDAYS IF THE EXIGENCIES OF THE SERVICE REQUIRE. IF SUCH EMPLOYEES FALL WITHIN THE PURVIEW OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 75, THEY ARE PAID, ALSO, THEIR PRO RATA OVERTIME COMPENSATION FOR SUNDAYS ALTHOUGH THEY DO NOT WORK ON THAT DAY. A PERIOD OF SUSPENSION WITHOUT PAY OFTEN INCLUDES ONE OR MORE SUNDAYS ON WHICH THE EMPLOYEE OTHERWISE WOULD NOT HAVE WORKED AND THERE NEVER HAS BEEN ANY QUESTION BUT THAT THE EMPLOYEE IS NOT ENTITLED TO HIS COMPENSATION FOR SUNDAYS SOLELY BECAUSE THEY WOULD HAVE BEEN ENTITLED THERETO WITHOUT WORKING HAD THEY NOT BEEN SUSPENDED FROM DUTY.

IN THE BODY OF THE DECISION OF DECEMBER 2, 1911, 18 COMP. DEC. 408, 411, TO WHICH YOU REFER, IT WAS STATED:

I DO NOT AGREE WITH THE CLAIMANT IN HIS CONTENTION THAT HE WAS ENTITLED UNDER THE LAW TO EVERY SIXTH DAY AS A LAY-OFF PERIOD BECAUSE HE HAD WORKED FIVE DAYS; FOR, AS A MATTER OF FACT, HE COULD HAVE BEEN REQUIRED TO PERFORM DUTY UPON THAT DAY AND MAY NOT HAVE RECEIVED EXTRA PAY FOR SUCH SERVICES. FURTHERMORE, IT HAS BEEN REPEATEDLY HELD THAT IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY THE POWER TO DISCHARGE OR TO FURLOUGH AN EMPLOYEE WITHOUT PAY IS INCIDENT TO THE POWER OF EMPLOYING HIM; AND THAT IF HE IS SO DISCHARGED OR FURLOUGHED BECAUSE OF ALLEGED INEFFICIENCY OR NEGLECT OF DUTY, THE ACCOUNTING OFFICERS WOULD NOT BE WARRANTED IN ALLOWING HIM PAY AFTER SUCH DISCHARGE OR DURING SUCH FURLOUGH PERIOD; AND WHETHER HE WAS SO DISCHARGED OR FURLOUGHED IN ACCORDANCE WITH THE RULES OF THE CIVIL SERVICE IS AN ADMINISTRATIVE QUESTION WHICH THE ACCOUNTING OFFICERS HAVE NO JURISDICTION TO REVIEW. (SEE 9 COMP. DEC. 560; KEIM V. UNITED STATES, 177 U.S. 290.) ( ITALICS SUPPLIED).

ALTHOUGH THE DECISION REFERRED TO THE FACT THAT AT THAT TIME NO EXTRA COMPENSATION WAS PAYABLE FOR WORK ON SUNDAYS (SEE ITALICIZED PORTION), WHEREAS AT THE PRESENT TIME SUCH IS THE CASE, I BELIEVE THAT FACT WAS NOT INTENDED TO BE, AND WAS NOT, THE DECIDING FACTOR IN THE CONCLUSION THERE REACHED, NAMELY, THAT IT IS WITHIN ADMINISTRATIVE DISCRETION TO WITHHOLD COMPENSATION OF PER ANNUM EMPLOYEES FOR NON WORKDAYS OR LAY-OFF PERIODS AS A DISCIPLINARY MEASURE. I FIND NO SOUND BASIS FOR HOLDING THAT IT IS NOT WITHIN ADMINISTRATIVE DISCRETION TO WITHHOLD FROM EMPLOYEES AS A DISCIPLINARY MEASURE THE COMPENSATION THEY OTHERWISE WOULD HAVE RECEIVED FOR SUNDAYS ON WHICH THEY DID NOT WORK HAD THEY NOT BEEN SUSPENDED FROM WORKING OR THE OPPORTUNITY OF WORKING ON SUNDAYS.

ACCORDINGLY, THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.