B-62117, JANUARY 10, 1947, 26 COMP. GEN. 477

B-62117, JANUARY 10, 1947, 26 COMP. GEN. 477

COMPENSATION - TRAVEL TIME - HOLIDAYS - NAVY DEPARTMENT EMPLOYEES TRAVELING TO AND FROM OVERSEAS POSTS OF DUTY NAVY DEPARTMENT CIVILIAN EMPLOYEES SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 WHO ARE ENTITLED UNDER THE ACT OF JULY 1, 1902, AS AMENDED, WHEN TRAVELING TO AND FROM OVERSEAS POSTS OF DUTY, TO "COMPENSATION AT A RATE CORRESPONDING TO THEIR RATE OF PAY WHILE ACTUALLY EMPLOYED" ARE NOT ENTITLED, FOR TRAVEL TIME ON A HOLIDAY, TO THE PREMIUM PAY AUTHORIZED BY SECTION 302 OF THE 1945 ACT, AS AMENDED, FOR EMPLOYEES "ASSIGNED TO DUTY ON A HOLIDAY; " AND THE SAME CONCLUSION APPLIES TO PER HOUR AND PER DIEM EMPLOYEES FOR WHOM PREMIUM RATES OF PAY ARE AUTHORIZED BY ADMINISTRATIVE REGULATIONS WHEN THEY ARE "REQUIRED TO WORK ON A HOLIDAY.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JANUARY 10, 1947:

REFERENCE IS MADE TO LETTER OF NOVEMBER 21, 1946, FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY, REFERENCE JAG:II:RT:EO, TRANSMITTING LETTER DATED OCTOBER 23, 1946, FROM THE DEPUTY CHIEF, OFFICE OF INDUSTRIAL RELATIONS (OIR:415:SI), AND REQUESTING DECISION RESPECTING THE RIGHT OF EMPLOYEES TO PAYMENT OF HOLIDAY PREMIUM COMPENSATION WHEN TRAVELING UNDER OFFICIAL TRAVEL ORDERS TO THE CONTINENTAL UNITED STATES IN A DUTY STATUS ON A HOLIDAY FALLING WITHIN THE BASIC WORKWEEK.

THE LETTER FROM THE DEPUTY CHIEF, OFFICE OF INDUSTRIAL RELATIONS, IS AS FOLLOWS: TO: OFFICE OF JUDGE ADVOCATE GENERAL. SUBJ:REQUEST FOR DECISION OF COMPTROLLER GENERAL--- PAYMENT OF

HOLIDAY PREMIUM COMPENSATION TO EMPLOYEE IN OFFICIAL TRAVEL

STATUS. REF: (A) 15THNAVDIST SPDLTR LL2/A1/2) (61) (WAM/VE NO. 680,

WITHOUT DATE.

(B) NCPI 85.3-4 1 REV. I, AMENDMENT 3.

1. THE COMMANDANT OF THE FIFTEENTH NAVAL DISTRICT IN REFERENCE (A), HAS PRESENTED THE FOLLOWING QUESTION TO THE NAVY DEPARTMENT:

"SHOULD EMPLOYEES TRAVELING UNDER OFFICIAL TRAVEL ORDERS TO THE CONTINENTAL UNITED STATES IN A DUTY STATUS ON A HOLIDAY FALLING WITHIN THE BASIC WORKWEEK BE PAID AT TWICE THE RATE OF BASIC COMPENSATION?

2. THE "EMPLOYEES" HERE INVOLVED ARE EMPLOYEES SUBJECT TO THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS AMENDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946. THE INSTRUCTIONS OF THE NAVY DEPARTMENT AS CONTAINED IN REFERENCE (B, WITH RESPECT TO HOLIDAY PREMIUM PAY, READ IN PERTINENT PART AS FOLLOWS:

"AN EMPLOYEE TO WHOM THIS SECTION APPLIES ( NCPI 85.3-3) "* * * WHO IS ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER DURING HOURS WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS SHALL BE COMPENSATED FOR NOT TO EXCEED EIGHT HOURS OF SUCH DUTY, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, IN LIEU OF HIS REGULAR RATE OF BASIC COMPENSATION FOR SUCH DUTY, AT THE RATE OF TWICE SUCH REGULAR RATE OF BASIC COMPENSATION, IN ADDITION TO ANY EXTRA COMPENSATION FOR NIGHT DUTY * * *.' (QUOTING FROM THE FEDERAL EMPLOYEES PAY ACT OF 1946.) SUCH EXTRA HOLIDAY COMPENSATION SHALL NOT SERVE TO REDUCE THE AMOUNT OF OVERTIME COMPENSATION TO WHICH AN EMPLOYEE MAY BE ENTITLED. SUCH EXTRA HOLIDAY COMPENSATION SHALL NOT BE CONSIDERED TO BE A PART OF BASIC COMPENSATION FOR PURPOSES OF COMPUTING OVERTIME COMPENSATION.'

THE "SECTION" MENTIONED IN THE ABOVE QUOTED INSTRUCTION APPLIES TO ALL EMPLOYEES SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS AMENDED.

3. THIS OFFICE HAS BEEN UNABLE TO FIND ANY RULINGS OF THE COMPTROLLER GENERAL DIRECTLY APPLICABLE TO THE QUESTION PRESENTED. HOWEVER, THERE IS FOR NOTING THE FACT THAT, WHILE THE PHRASE--- "WHO IS ASSIGNED TO DUTY ON A HOLIDAY" IS USED IN THE ACT (THE FEDERAL EMPLOYEES PAY ACT OF 1946), THE COMPTROLLER GENERAL IN VARIOUS RULINGS HAS USED THE TERM "WORK" INSTEAD OF TY.' FOR EXAMPLE:

(A) "SINCE THE PREMIUM HOLIDAY PAY AUTHORIZED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS PAYABLE FOR THE ACTUAL NUMBER OF HOURS WORKED * * *.' (B-54254 JAN. 3, 1946.)

(B) "A PER ANNUM EMPLOYEE WHO WORKED IN EXCESS OF 8 HOURS ON A HOLIDAY * * *.' (B-55504 MAR. 20, 1946.)

(C) "TEMPORARY PER ANNUM EMPLOYEES SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 AS AMENDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946 ARE ENTITLED TO PAY FOR WORK PERFORMED ON A HOLIDAY * * " (B-58164 OF JUNE 17, 1946.) (NOTE: ALL ITALICS SUPPLIED.)

4. IN 14 COMP. GEN. 907, WITH RESPECT TO PER DIEM EMPLOYEES SUBJECT TO THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 522), IT WAS STATED:

"* * * NO LABOR IS PERFORMED DURING PERIODS OF TRAVEL BETWEEN DUTY STATIONS AND HEADQUARTERS * * *.'

ASSUMING THAT "LABOR" AND "WORK" ARE SYNONYMOUS TERMS, FOR PURPOSES OF THIS SUBMISSION, IT WOULD SEEM THAT AN EMPLOYEE, ALTHOUGH IN A "DUTY" STATUS WHILE TRAVELING ON OFFICIAL ORDERS, IS NOT NECESSARILY IN A "WORK" STATUS.

5. THE FOLLOWING IS QUOTED FROM REPORT OF THE COMMITTEE ON THE CIVIL SERVICE ( H.R. REPORT NO. 726, 79TH CONGRESS), WITH REFERENCE TO THE FEDERAL EMPLOYEES PAY ACT OF 1945:

"SECTION 302. COMPENSATION FOR HOLIDAY WORK.--- THIS SECTION PROVIDES FOR EXTRA COMPENSATION FOR WORKING ON A HOLIDAY * * *.' (ITALICS SUPPLIED.)

THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS WELL AS THE FEDERAL EMPLOYEES PAY ACT OF 1946, USES THE PHRASE--- "ASSIGNED TO DUTY ON A HOLIDAY * * *.' IT WAS THE APPARENT INTENT OF CONGRESS THAT AN EMPLOYEE WORK ON A HOLIDAY IN ORDER TO BE ENTITLED TO COMPENSATION AT THE HOLIDAY PREMIUM RATE.

6. IN VIEW OF THE FOREGOING IT IS REQUESTED THAT A DECISION OF THE COMPTROLLER GENERAL BE OBTAINED ON THE QUESTION SUBMITTED IN PARAGRAPH ONE.

7. ON THE BASIS OF THE HOLIDAY PREMIUM PAY PROVISIONS CONTAINED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND DECISION OF THE COMPTROLLER GENERAL B-53383 OF FEB. 7, 1946, AND IN ORDER TO EQUALIZE THE RIGHTS OF PER ANNUM AND PER DIEM EMPLOYEES WITH RESPECT TO HOLIDAY PREMIUM PAY, THE SECRETARY OF THE NAVY BY ADMINISTRATIVE ORDER AUTHORIZED THE PAYMENT OF HOLIDAY PREMIUM COMPENSATION TO WAGE BOARD EMPLOYEES (THOSE WHOSE WAGES ARE FIXED BY THE SECRETARY OF THE NAVY UNDER THE ACT OF JULY 16, 1862--- 12 STAT. 587), WHO ARE "REQUIRED TO WORK ON A HOLIDAY.' THE INSTRUCTIONS PERTAINING TO THIS GROUP OF EMPLOYEES ARE SUBSTANTIALLY THE SAME AS THOSE SET DOWN IN PARAGRAPH TWO HEREOF, EXCEPT THAT THE LANGUAGE "REQUIRED TO WORK ON A HOLIDAY" IS USED IN LIEU OF "ASSIGNED TO DUTY ON A HOLIDAY.' SEE NCPI 250.7-13I REV. I, AMENDMENT 5. A RULING IS ALSO REQUESTED AS TO WHETHER OR NOT THE ANSWER TO THE QUESTION PRESENTED IN PARAGRAPH ONE HEREOF, WOULD ALSO APPLY TO WAGE BOARD EMPLOYEES UNDER THE SAME CIRCUMSTANCES.

THE ACT OF JULY 1, 1902, 32 STAT. 662, AS AMENDED BY THE ACT OF JUNE 13, 1940, 54 STAT. 383, IS INCORPORATED IN 34 U.S.C. 506, AS FOLLOWS:

THE SECRETARY OF THE NAVY, IN HIS DISCRETION, IS AUTHORIZED TO PAY ALL CIVILIAN EMPLOYEES APPOINTED FOR DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, AND IN ALASKA, FROM THE DATE OF THEIR SAILING FROM THE UNITED STATES UNTIL THEY REPORT FOR DUTY TO THE OFFICER UNDER WHOM THEY ARE TO SERVE, AND WHILE RETURNING TO THE UNITED STATES BY THE MOST DIRECT ROUTE AND WITH DUE EXPEDITION, COMPENSATION AT A RATE CORRESPONDING TO THEIR RATE OF PAY WHILE ACTUALLY EMPLOYED.

SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, AS AMENDED BY SECTION 11 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER DURING HOURS WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS SHALL BE COMPENSATED FOR NOT TO EXCEED EIGHT HOURS OF SUCH DUTY, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, IN LIEU OF HIS REGULAR RATE OF BASIC COMPENSATION, IN ADDITION TO ANY EXTRA COMPENSATION FOR NIGHT DUTY PROVIDED BY SECTION 301 OF THIS ACT.

IT CONSISTENTLY HAS BEEN HELD THAT AN EMPLOYEE IN A PAY STATUS IS ENTITLED TO HIS REGULAR COMPENSATION WHILE TRAVELING ON OFFICIAL BUSINESS DURING THE HOURS COMPRISING HIS DAILY TOUR OF DUTY, THE SAME AS IF HE HAD REMAINED AT HIS HEADQUARTERS REGARDLESS OF WHETHER, DURING SUCH TRAVEL, HE PERFORMS ACTUAL DUTY.

THE HOLIDAY PROVISION OF THE NEW PAY ACT ENTITLES THE EMPLOYEE TO HOLIDAY PREMIUM PAY "WHEN ASSIGNED TO DUTY" ON A HOLIDAY FOR NOT TO EXCEED 8 HOURS "OF SUCH DUTY" AND, PROVIDED, OF COURSE, THE OTHER REQUIREMENTS OF THE STATUTE BE MET. IT IS NOT BELIEVED THAT THE CONGRESS INTENDED TO ALLOW AN EMPLOYEE TO BE COMPENSATED AT THE HOLIDAY RATE OF PAY EXCEPT IN THOSE INSTANCES IN WHICH HE ACTUALLY PERFORMS WORK ON THE HOLIDAY. THAT IS TO SAY, AN EMPLOYEE IS NOT ENTITLED TO THE HOLIDAY PREMIUM PAY MERELY BECAUSE HE IS IN A TRAVEL STATUS--- THE PERIOD OF TIME SPENT IN TRAVELING USUALLY BEING NONPRODUCTIVE AND THE TRAVELER BEING MORE OR LESS FREE FROM ANY DUTIES AND PERMITTED TO SPEND THE TIME IN SUCH MANNER AS HE DESIRES OR SEES FIT.

WITH RESPECT TO THE ACT OF JULY 1, 1902, AS AMENDED, SUPRA, IT IS NOT BELIEVED THAT THE PROVISIONS THEREOF HAVE ANY EFFECT UPON THE ABOVE STATED CONCLUSIONS. THE BASIC PURPOSE OF THAT STATUTE IS TO ALLOW COMPENSATION TO CIVILIAN EMPLOYEES OF THE NAVY FOR DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES FOR THEIR NECESSARY TRANSIT OR TRAVEL TIME BEYOND SUCH LIMITS IN GOING TO AND FROM THEIR OVERSEAS STATION. THE STATUTE PROVIDES FOR PAYMENT OF COMPENSATION, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, FOR SUCH TRAVEL TIME "AT A RATE CORRESPONDING TO THEIR RATE OF PAY WHILE ACTUALLY EMPLOYED.' THE LANGUAGE USED THEREIN IS UNDERSTOOD TO MEAN THE REGULAR BASIC PAY OF THE EMPLOYEES AND ENTITLES THEM, WITHIN THE LIMITS OF ANY OTHER APPLICABLE STATUTORY PROVISIONS, TO RECEIVE THEIR REGULAR PAY FOR TRAVEL PERFORMED ON A HOLIDAY THE SAME AS IF THEY HAD BEEN AT THEIR HEADQUARTERS. THAT STATUTE, CONSIDERED IN CONJUNCTION WITH THE STATUTES AND REGULATIONS AUTHORIZING HOLIDAY PREMIUM PAY, IS NOT, HOWEVER, TO BE CONSIDERED AS CONFERRING UPON THE EMPLOYEES SO TRAVELING ANY GREATER BENEFITS IN THE WAY OF HOLIDAY COMPENSATION THAN THOSE ACCRUING TO EMPLOYEES TRAVELING WITHIN THE UNITED STATES ON A HOLIDAY.

HENCE, THE QUESTION STATED IN PARAGRAPH 1 OF THE ABOVE-QUOTED LETTER IS ANSWERED IN THE NEGATIVE.

THE ACT OF JULY 16, 1862, 34 U.S.C. 505, PROVIDES AS FOLLOWS:

THE RATE OF WAGES OF THE EMPLOYEES IN THE NAVY YARDS SHALL CONFORM, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST, WITH THOSE OF PRIVATE ESTABLISHMENTS IN THE IMMEDIATE VICINITY OF THE RESPECTIVE YARDS, TO BE DETERMINED BY THE COMMANDANTS OF THE NAVY YARDS, SUBJECT TO THE APPROVAL AND REVISION OF THE SECRETARY OF NAVY.

IN DECISION OF FEBRUARY 7, 1946, B-53383, 25 COMP. GEN. 584, IT WAS HELD WITH RESPECT TO PAYMENT OF HOLIDAY PREMIUM PAY TO EMPLOYEES WHOSE WAGES ARE FIXED BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES THAT THIS OFFICE WOULD "OFFER NO OBJECTION TO OTHERWISE PROPER ADMINISTRATIVE REGULATIONS AUTHORIZING PENALTY RATES FOR WORK ADMINISTRATIVELY REQUIRED ON HOLIDAYS REGARDLESS OF THE FACT THAT SUCH DAYS FALL WITHIN AN EMPLOYEE'S REGULAR TOUR OF DUTY.' SUBSEQUENT TO THAT DECISION, THE SECRETARY OF THE NAVY ISSUED REGULATIONS AUTHORIZING THE PAYMENT OF HOLIDAY PREMIUM COMPENSATION TO THE ABOVE-NAMED CLASS OF EMPLOYEES, WHICH ARE SET OUT IN NAVY CIVILIAN PERSONNEL INSTRUCTIONS, 250.7-13I, REVISION I, AMENDMENT 5, IN PERTINENT PART, AS FOLLOWS:

1. HOLIDAY--- ADDITIONAL PAY FOR WORK ON.--- ALL PER DIEM AND PER ANNUM EMPLOYEES WHOSE WAGES ARE FIXED BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY, WHO ARE REQUIRED TO WORK ON A HOLIDAY DESIGNATED BY A FEDERAL STATUTE OR EXECUTIVE ORDER, FALLING WITHIN THE BASIC WORKWEEK OF 40 HOURS, SHALL RECEIVE FOR NOT EXCEEDING 8 HOURS OF SUCH WORK, EXCLUDING PERIODS WHEN IN A LEAVE STATUS, COMPENSATION AT THE RATE OF TWICE THE REGULAR SCHEDULE RATE OF PAY, IN LIEU OF THE REGULAR SCHEDULE RATE OF PAY FOR NOT EXCEEDING 8 HOURS. * * *

THOSE REGULATIONS, AS POINTED OUT IN PARAGRAPH 7 OF LETTER OF OCTOBER 23, 1946, QUOTED ABOVE, USE SUBSTANTIALLY THE SAME LANGUAGE AS THE NEW EMPLOYEES' PAY ACT, THE ONLY SIGNIFICANT DIFFERENCE BEING THE USE OF THE PHRASE,"REQUIRED TO WORK ON A HOLIDAY," IN LIEU OF "ASSIGNED TO DUTY ON A HOLIDAY.' THEREFORE, THE ANSWER TO THE FIRST QUESTION, SUPRA, IS EQUALLY APPLICABLE TO EMPLOYEES WHOSE WAGES ARE FIXED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JULY 16, 1862, UNDER THE SAME CIRCUMSTANCES.