B-52499, SEPTEMBER 27, 1945, 25 COMP. GEN. 305

B-52499, SEPTEMBER 27, 1945, 25 COMP. GEN. 305

COMPENSATION - AUGUST 14 AND 15, 1945; HOLIDAYS - "WHEN ACTUALLY EMPLOYED" EMPLOYEES THE EXTRA COMPENSATION AUTHORIZED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR WORK "ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER" MAY NOT BE PAID TO EMPLOYEES ENGAGED ON A "WHEN ACTUALLY EMPLOYED" BASIS AT PREVAILING LOCAL RATES WHO WERE REQUIRED TO WORK ON AUGUST 15 AND 16, 1945--- DAYS ON WHICH MOST EMPLOYEES WERE EXCUSED FROM DUTY PURSUANT TO THE REQUEST OF THE PRESIDENT. A "WHEN ACTUALLY EMPLOYED" EMPLOYEE MAY NOT BE EXCUSED FROM WORKING BY ADMINISTRATIVE ACTION ON ANY DAY AND RECEIVE PAY THEREFOR UNLESS HE IS EMPLOYED CONTINUOUSLY AND IS ENTITLED TO AND HAS BEEN GRANTED LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND CONDITIONS OF THE ANNUAL AND SICK LEAVE REGULATIONS. "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO DID NOT WORK ON AUGUST 15 AND 16, 1945--- DAYS ON WHICH MOST EMPLOYEES WERE EXCUSED FROM DUTY PURSUANT TO THE REQUEST OF THE PRESIDENT--- AND WHO WERE NOT GRANTED LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND CONDITIONS OF THE ANNUAL AND SICK LEAVE REGULATIONS ARE NOT ENTITLED TO COMPENSATION FOR SUCH DAYS; AND COMPENSATION FOR WORK ON THE FOLLOWING SATURDAY, THE "OVERTIME" DAY OF THEIR WORKWEEK, SHOULD BE PAID AT THE STRAIGHT-TIME RATE, ONLY, AND NOT AT THE OVERTIME RATE. "WHEN ACTUALLY EMPLOYED" EMPLOYEES ARE ENTITLED TO THE EXTRA COMPENSATION PROVIDED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR WORK PERFORMED ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, SEPTEMBER 27, 1945:

I HAVE YOUR LETTER OF SEPTEMBER 17, 1945, AS FOLLOWS:

THE VETERANS ADMINISTRATION IS AUTHORIZED TO EMPLOY UNDER PURCHASE AND HIRE ALLOTMENTS CRAFTSMEN (PAINTERS, CARPENTERS, STEAMFITTERS, ETC.) TO PERFORM WORK WHICH IT IS CONSIDERED ADVANTAGEOUS AND ECONOMICAL TO HAVE PERFORMED BY STATION LABOR ON OTHER THAN A COMPETITIVE CONTRACT BASIS. THESE EMPLOYEES ARE APPOINTED, SUBJECT TO TAKING THE OATH OF OFFICE, FOR CERTAIN TEMPORARY PERIODS AT SPECIFIED HOURLY RATES, PAYMENTS TO BE MADE WHEN ACTUALLY EMPLOYED.

THE REGULATIONS OF THE VETERANS ADMINISTRATION READ AS FOLLOWS:

"3932. TEMPORARY LABOR.--- (A) WHEN TEMPORARY EMPLOYMENT OF MECHANICS, LABORERS, AND CLERICAL ASSISTANTS (CLERICAL ASSISTANTS TO BE PLACED ON DUTY ONLY WHEN SPECIALLY AUTHORIZED BY THE CONSTRUCTION SERVICE) HAS BEEN AUTHORIZED FOR SUCH OF THE WORK AS IS TO BE DONE BY PURCHASE AND HIRE, NOMINATIONS WILL BE SUBMITTED FOR SUCH NECESSARY TEMPORARY EMPLOYEES, IN STRICT ACCORDANCE WITH CIVIL SERVICE AND VETERANS ADMINISTRATION REGULATIONS. UNLESS SUBJECT TO THE FOLLOWING EXCEPTIONS, THE POSITIONS WILL BE GIVEN A CLASSIFICATION GRADE, AND COMPENSATION SCHEDULES OR SALARY RANGES, ESTABLISHED PURSUANT TO THE CLASSIFICATION ACT, WILL APPLY, ENTRANCE SALARIES BEING LIMITED TO THE MINIMUM OF THE GRADES AS PROVIDED IN R. AND P. 9286. EXCEPTIONS MAY BE MADE BY EMPLOYING AT WAGES NOT EXCEEDING PREVAILING LOCAL RATES, PERSONS APPOINTED TO PERFORM OR TO ASSIST IN APPRENTICE, HELPER, OR JOURNEYMAN WORK IN A RECOGNIZED TRADE OR CRAFT AND PERSONS APPOINTED AS SEMI-SKILLED OR SKILLED LABORERS. PAYROLLS COVERING THE TEMPORARY PERSONNEL UNDER AN ALLOTMENT WILL BEAR REFERENCE TO ITS NUMBER AND OTHER USUAL EXTENSIONS. THEY WILL ALSO SHOW STATUS OF THE EMPLOYEES; I.E., SKILLED LABORER, BRICKLAYER, CARPENTER, ETC. AFTER EACH NAME, UNDER REMARKS, WILL BE SHOWN HOURS AND AMOUNT TO BE CHARGED AGAINST EACH ALLOTMENT. THE TOTALS WILL CHECK WITH ALLOCATION TO ALLOTMENTS AT END OF EACH PAYROLL. SINCE THE APPROPRIATIONS FROM WHICH THESE ALLOTMENTS ARE MADE ARE AVAILABLE FOR PAY OF PERSONNEL ONLY WHEN SUCH PERSONNEL IS TEMPORARILY EMPLOYED ON CONSTRUCTION, ALTERATION, OR REPAIR, IT IS IMPERATIVE THAT THESE PAYROLLS BE ON SEPARATE SHEETS FROM THE REGULAR STATION PERSONNEL AND BE ENDORSED PLAINLY " TEMPORARY EMPLOYEES ON CONSTRUCTION AND REPAIR WORK.' COPIES OF SUCH PAYROLLS ON THIN WHITE PAPER WILL BE FORWARDED TO CENTRAL OFFICE, ATTENTION CONSTRUCTION SERVICE, TOGETHER WITH THE FINANCIAL REPORTS REQUIRED ON THE ALLOTMENT.

"/B) CONSTRUCTION SERVICE ALLOTMENTS AUTHORIZE TEMPORARY APPOINTMENTS ON AN HOURLY BASIS ONLY OF ALL LABORERS AND MECHANICS AND ON A PER ANNUM BASIS OF OTHER PERSONNEL. * * * SUCH TEMPORARY EMPLOYEES WORKING ON AN HOURLY BASIS ARE PAID ONLY FOR ACTUAL HOURS OF DUTY PERFORMED. * * * "

INQUIRIES HAVE BEEN RECEIVED FROM A NUMBER OF FIELD STATIONS AS TO SALARY PAYMENTS PROPERLY TO BE MADE TO THIS CLASS OF EMPLOYEES FOR AUGUST 15 AND 16, 1945, THE DAYS ON WHICH GOVERNMENT EMPLOYEES GENERALLY WERE GRANTED OFFICIAL HOLIDAYS BY ORDER OF THE PRESIDENT IN RECOGNITION OF THE ACCEPTANCE BY THE JAPANESE OF THE POTSDAM DECLARATION. REPLIES HAVE BEEN MADE TO THE STATIONS THAT PAYMENTS AT BASIC RATE OF COMPENSATION WERE PROPER ONLY IN THE EVENT EMPLOYEES ACTUALLY PERFORMED THEIR OFFICIAL DUTIES ON THOSE DAYS.

THERE WAS RECENTLY RECEIVED FROM THE MANAGER OF THE REGIONAL OFFICE AT PITTSBURGH, PENNSYLVANIA, AN INQUIRY AS TO PAYMENTS FOR THESE TWO DAYS, AND THE TELEGRAM IS QUOTED IN FULL FOR YOUR INFORMATION:

"MEMBERS STEAMFITTERS LOCAL UNION 499 EMPLOYED PURCHASE AND HIRE RENOVATION PICKERING AND MARIETTA BUILDINGS DEMAND PAY FOR AUGUST 15 AND 16 AS FEDERAL HOLIDAYS IN ACCORDANCE PRESIDENTS PROCLAMATION EMPLOYEES HAVE LEFT THE JOB AND UNION CARPENTERS ARE CONSIDERING STRIKING IN SYMPATHY STEAMFITTERS WHO ARE NOW OUT RETURNING TO DUTY PENDING REPLY TO THIS WIRE I KNOW OF NO AUTHORITY TO MAKE PAYMENT TO PURCHASE AND HIRE EMPLOYEES EXCEPT FOR TIME ACTUALLY WORKED AND HAVE SO INFORMED THEM REQUEST REPLY TODAY.'

IN VIEW OF THE URGENCY OF THE SITUATION CENTRAL OFFICE CONTACTED THE MANAGER BY TELEPHONE. INFORMATION WAS RECEIVED THAT, WITH ONE EXCEPTION, THE EMPLOYEES IN QUESTION HAD NOT PERFORMED DUTY ON AUGUST 15 AND 16. PAYMENT TO THE EMPLOYEES FOR THESE DAYS, HOWEVER, WAS BEING DEMANDED BY THE UNION. THE MANAGER FURNISHED INFORMATION THAT, IN MAKING PURCHASE AND HIRE APPOINTMENTS AT THAT STATION, THE APPOINTMENT NOTICES DO NOT CONTAIN A STATEMENT THAT SALARY WILL BE PAID ONLY ,WHEN ACTUALLY EMPLOYED," BUT THAT EACH PERSON APPOINTED IS VERY DEFINITELY INFORMED AT THE TIME HE REPORTS FOR DUTY THAT NO PAYMENTS OF SALARY WILL BE MADE UNLESS ACTUAL WORK IS PERFORMED.

IN VIEW OF THE PRESENT LABOR CONDITIONS, AND IN ORDER THAT THERE MAY BE NO DOUBT AS TO PAYMENTS PROPERLY TO BE MADE TO PURCHASE AND HIRE EMPLOYEES, YOUR DECISION AS TO THE FOLLOWING QUESTIONS IS REQUESTED:

1. WHETHER SALARY IS PAYABLE TO PURCHASE AND HIRE EMPLOYEES WHO WORKED ON AUGUST 15 AND 16, 1945, AT THE BASIC RATE OF COMPENSATION, OR AT A RATE ONE AND ONE-HALF TIMES THE BASIC RATE.

2. WHETHER SALARY IS PAYABLE TO PURCHASE AND HIRE EMPLOYEES WHO DID NOT WORK AUGUST 15 AND 16, 1945, AND IF SO, AT WHAT RATE OF COMPENSATION. NO PAYMENTS ARE PROPER FOR THESE DAYS ON THE BASIS THAT NO WORK WAS PERFORMED, IT WOULD APPEAR THAT OVERTIME FOR SATURDAY, THE USUAL OVERTIME DAY, WOULD NOT BE EARNED AND THAT OVERTIME FOR THAT DAY WOULD NOT BE PAYABLE.

YOUR DECISION ALSO IS REQUESTED AS TO THE FOLLOWING:

IN THE EVENT AN EMPLOYEE SUCH AS A PURCHASE AND HIRE EMPLOYEE REFERRED TO ABOVE IS ON DUTY AND RENDERS SERVICE ON A DAY OFFICIALLY OR LEGALLY DECLARED TO BE A HOLIDAY, AS FOR INSTANCE LABOR DAY, MONDAY, SEPTEMBER 3, 1945, WILL SALARY BE PAYABLE AT THE BASIC RATE OF COMPENSATION OR AT A RATE OF ONE AND ONE-HALF TIMES THE BASIC RATE?

DECISION AT THE EARLIEST POSSIBLE DATE WILL BE APPRECIATED.

SINCE IT IS STATED IN YOUR LETTER THAT THE EMPLOYEES INVOLVED DEFINITELY WERE INFORMED THAT "NO PAYMENTS OF SALARY WILL BE MADE UNLESS ACTUAL WORK IS PERFORMED," THEY PROPERLY MAY BE REGARDED AS HAVING BEEN EMPLOYED ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" AND THE QUESTIONS PRESENTED WILL BE CONSIDERED AND ANSWERED UPON THAT BASIS.

SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 298, PUBLIC LAW 106, PROVIDES:

COMPENSATION FOR HOLIDAY WORK

SEC. 302. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES WHO ARE ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER SHALL BE COMPENSATED FOR SUCH DUTY, EXCLUDING PERIODS WHEN THEY ARE IN LEAVE STATUS, IN LIEU OF THEIR REGULAR PAY FOR THAT DAY, AT THE RATE OF ONE AND ONE-HALF TIMES THE REGULAR BASIC RATE OF COMPENSATION: PROVIDED, THAT EXTRA HOLIDAY COMPENSATION PAID UNDER THIS SECTION SHALL NOT SERVE TO REDUCE THE AMOUNT OF OVERTIME COMPENSATION TO WHICH THE EMPLOYEE MAY BE ENTITLED UNDER THIS OR ANY OTHER ACT DURING THE ADMINISTRATIVE WORKWEEK IN WHICH THE HOLIDAY OCCURS, BUT SUCH EXTRA HOLIDAY COMPENSATION SHALL NOT BE CONSIDERED TO BE A PART OF THE BASIC COMPENSATION FOR THE PURPOSE OF COMPUTING SUCH OVERTIME COMPENSATION. THIS SECTION SHALL TAKE EFFECT UPON THE CESSATION OF HOSTILITIES IN THE PRESENT WAR AS PROCLAIMED BY THE PRESIDENT, OR AT SUCH EARLIER TIME AS THE CONGRESS BY CONCURRENT RESOLUTION MAY PRESCRIBE. PRIOR TO SO BECOMING EFFECTIVE, IT SHALL BE EFFECTIVE WITH RESPECT TO ANY DESIGNATED HOLIDAY ONLY IF THE PRESIDENT HAS DECLARED THAT SUCH DAY SHALL NOT BE GENERALLY A WORKDAY IN THE FEDERAL SERVICE.

IT IS FOR NOTING THAT SAID SECTION RELATES ONLY TO "A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER.' THE QUESTION AS TO WHETHER AUGUST 15 AND 16, 1945, COULD BE TERMED AS HOLIDAYS WITHIN THE MEANING OF SAID SECTION WAS CONSIDERED BY THIS OFFICE IN DECISION OF SEPTEMBER 4, 1945, B- 51947, 25 COMP. GEN. 254, ADDRESSED TO THE SECRETARY OF COMMERCE, AND, WITH REFERENCE THERETO, IT WAS STATED:

* * * SO FAR AS GOVERNMENT EMPLOYEES ARE CONCERNED, AUGUST 15 AND 16, 1945, WERE NOT HOLIDAYS DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER. THE PRESIDENT MERELY REQUESTED THE HEADS OF DEPARTMENTS, AGENCIES, AND BUREAUS TO EXCUSE CERTAIN FEDERAL EMPLOYEES FROM WORKING ON AUGUST 15 AND 16, REQUIRING ONLY A SKELETON FORCE TO BE MAINTAINED. THE PRESIDENT DID NOT CLOSE, OR DIRECT THE CLOSING OF, ANY FEDERAL OFFICE ON THOSE DAYS. COMPARE THE ORDER OF APRIL 13, 1945, PROVIDING THAT "ALL EXECUTIVE DEPARTMENTS AND AGENCIES WILL BE CLOSED ON SATURDAY AFTERNOON, APRIL 14" (QUOTED IN DECISION OF MAY 23, 1945, 24 COMP. GEN. 843, 844.). * * *

IN LINE WITH THAT DECISION, YOU ARE ADVISED, IN ANSWER TO YOUR FIRST QUESTION, THAT ONLY THE BASIC RATE OF COMPENSATION--- AND NOT ONE AND ONE- HALF TIMES SUCH BASIC RATE--- SHOULD BE PAID FOR WORK PERFORMED ON AUGUST 15 AND 16, 1945.

AN EMPLOYEE WHO IS EMPLOYED ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," SUCH AS APPEARS TO BE THE SITUATION IN THIS CASE, MAY NOT BE EXCUSED FROM WORKING BY ADMINISTRATIVE ACTION ON ANY DAY AND RECEIVE PAY THEREFOR UNLESS SUCH EMPLOYEE IS EMPLOYED CONTINUOUSLY AND IS ENTITLED TO AND HAS BEEN GRANTED LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND CONDITIONS OF THE LEAVE REGULATIONS. SEE SECTION 1.1 (D) OF THE CURRENT LEAVE REGULATIONS, AND 20 COMP. GEN. 827. THAT IS TO SAY, THE NATURE OF THE EMPLOYEE'S APPOINTMENT WOULD BE INCONSISTENT WITH ADMINISTRATIVE ACTION EXCUSING HIM FROM WORKING WITHOUT LOSS OF PAY. ACCORDINGLY, WITH REFERENCE TO YOUR SECOND QUESTION, THE EMPLOYEES WHO DID NOT WORK ON AUGUST 15 AND 16, 1945, ARE NOT ENTITLED TO ANY COMPENSATION THEREFOR UNLESS THEY WERE ENTITLED TO AND WERE GRANTED LEAVE OF ABSENCE WITH PAY FOR SUCH DAYS. IF THEY WERE NOT ENTITLED TO AND WERE NOT GRANTED LEAVE OF ABSENCE WITH PAY FOR SUCH DAYS AND DID NOT WORK ON THOSE DAYS, THEY WOULD BE ENTITLED TO COMPENSATION FOR WORK PERFORMED ON SATURDAY AT THE STRAIGHT TIME RATE, ONLY, AND NOT AT THE OVERTIME RATE.

THERE IS NO DOUBT THAT EMPLOYEES OF THE CLASS HERE INVOLVED ARE ENTITLED TO THE BENEFITS OF THE PROVISIONS OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, QUOTED ABOVE, FOR WORK REQUIRED TO BE PERFORMED ON "A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER.' SINCE LABOR DAY IS A HOLIDAY SO DESIGNATED, YOU ARE ADVISED IN ANSWER TO YOUR LAST QUESTION, THAT THE EMPLOYEES INVOLVED WHO WERE REQUIRED TO WORK ON SUCH DAY ARE ENTITLED TO BE PAID AT THE RATE OF ONE AND ONE-HALF TIMES THE REGULAR BASE RATE OF COMPENSATION, AS AUTHORIZED IN SAID SECTION.