B-62567, DECEMBER 24, 1946, 26 COMP. GEN. 437

B-62567, DECEMBER 24, 1946, 26 COMP. GEN. 437

COMPENSATION - HOLIDAYS - HALF-DAY ON DECEMBER 24, 1946 - WAGE-BOARD EMPLOYEES WAR DEPARTMENT WAGE-BOARD EMPLOYEES WHO, BY ADMINISTRATIVE DIRECTION, ARE NOT EXCUSED FROM DUTY FOR THE HALF-DAY ON DECEMBER 24, 1946, WHEN OTHER EMPLOYEES ARE EXCUSED PURSUANT TO EXECUTIVE ORDER NO. 9810, ARE ENTITLED, FOR WORK ON SUCH HALF-DAY TO THE PREMIUM RATES OF PAY FIXED BY ADMINISTRATIVE REGULATION FOR "HOLIDAY" WORK.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, DECEMBER 24, 1946:

I HAVE YOUR LETTER OF DECEMBER 17, 1946, AS FOLLOWS:

ENCLOSED IS A COPY OF WAR DEPARTMENT ADMINISTRATION MEMORANDUM NO. W-16, 13 DECEMBER 1946, SUBJECT: EXCUSING WAR DEPARTMENT EMPLOYEES FROM DUTY ONE -HALF DAY ON DECEMBER 24, 1946. IN THE ADMINISTRATION OF THE EXECUTIVE ORDER QUOTED THEREIN QUESTIONS HAVE ARISEN AS TO THE APPLICATION OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 11 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946.

CONSIDERATION OF THE RULINGS IN 19 COMPTROLLER GENERAL 955 (PAGE 957) AND 20 ID. 411 (PAGE 415) LEADS TO THE CONCLUSION THAT LEAVE WILL NOT BE CHARGED UNDER ANY CIRCUMSTANCES FOR THE HALF ,HOLIDAY" ON DECEMBER 24, 1946, BECAUSE IT IS A NON-WORK DAY "ESTABLISHED BY EXECUTIVE OR ADMINISTRATIVE ORDER," QUOTED FROM THE ACT OF MARCH 2, 1940, 54 STAT. 38.

THE DIFFERENCE IN WORDING BETWEEN THE APPLICABLE SECTION OF THE PAY ACTS AND THE ACT OF MARCH 2, 1940, SUPRA, AND BETWEEN THE EXECUTIVE ORDER HERE CONSIDERED AND THE PRESIDENT'S REQUEST PERTAINING TO AUGUST 15 AND 16, 1945, LEADS TO SOME DOUBT AS TO WHETHER THE PROVISIONS OF 25 COMPTROLLER GENERAL 254, AS APPLIED IN 25 ID. 307, ARE APPLICABLE TO WORK PERFORMED UNDER ORDERS DURING THE TIME INSTALLATIONS ARE CLOSED AND EMPLOYEES EXCUSED ON DECEMBER 24, 1946. SPECIFICALLY, PROTECTIVE FORCES (FIREFIGHTERS AND GUARDS), HOSPITAL EMPLOYEES AND MAINTENANCE AND OTHER PERSONNEL MUST REMAIN ON DUTY SOLELY FOR THE PROTECTION OF GOVERNMENT PROPERTY OR TO PROVIDE ESSENTIAL SERVICES. THESE EMPLOYEES SHOULD NOT BE PENALIZED IN ANY WAY BECAUSE THEY ARE REQUIRED TO WORK WHEN OTHER EMPLOYEES ARE EXCUSED.

IN ORDER TO PROVIDE ADEQUATE INSTRUCTIONS TO ALL WAR DEPARTMENT INSTALLATIONS, YOUR DECISION IS REQUESTED AS TO WHETHER THE PROVISIONS OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, APPLIES TO THE EMPLOYEES WHO ARE REQUIRED TO RENDER SERVICE ON DECEMBER 24, 1946, DURING THE TIME WHEN THE INSTALLATION IS CLOSED AND OTHER EMPLOYEES ARE EXCUSED PURSUANT TO THE EXECUTIVE ORDER OF DECEMBER 12, 1946, QUOTED IN THE ENCLOSED ADMINISTRATIVE MEMORANDUM NO. W-16. SINCE THE DEPARTMENT HAS APPLIED THE SAME PROVISIONS OF PREMIUM PAY FOR HOLIDAY WORK TO WAGE BOARD EMPLOYEES (25 COMP. GEN. 584) BY OFFICIAL ADMINISTRATIVE ACTION ( CIVILIAN PERSONNEL CIRCULARS NOS. 18 AND 66, 1946), IT IS ASSUMED THAT YOUR DECISION ON THE ABOVE STATED PROBLEM WILL APPLY EQUALLY TO WAGE BOARD EMPLOYEES OF THE DEPARTMENT.

BECAUSE OF THE SHORT TIME WHICH REMAINS BEFORE THE PROVISIONS OF THE EXECUTIVE ORDER WILL BE EFFECTIVE, YOUR EARLY CONSIDERATION OF THIS MATTER WILL BE GREATLY APPRECIATED.

IN DECISION OF DECEMBER 20, 1946, B-62569, 26 COMP. GEN. 431, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, WITH RESPECT TO THE EFFECT OF EXECUTIVE ORDER NO. 9810 DATED DECEMBER 12, 1946, UPON THE RIGHTS OF EMPLOYEES--- ADMINISTRATIVELY REQUIRED TO PERFORM DUTY DURING THE HALF DAY ON DECEMBER 24, 1946, WHEN OTHER EMPLOYEES ARE EXCUSED FROM DUTY--- TO THE PAYMENT OF HOLIDAY PAY AS PRESCRIBED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 11 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, IT WAS STATED:

EXECUTIVE ORDER NO. 9810, QUOTED IN YOUR LETTER, EXPRESSLY PROVIDES THAT THE VARIOUS EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER GOVERNMENTAL AGENCIES IN THE DISTRICT OF COLUMBIA "SHALL BE CLOSED ONE- HALF DAY ON TUESDAY, DECEMBER 24, 1946," AND FURTHER PROVIDES, IN EFFECT, THAT ALL EMPLOYEES IN THE FIELD SERVICE, AS WELL AS THOSE IN THE DISTRICT OF COLUMBIA--- EXCEPTING SUCH EMPLOYEES AS ADMINISTRATIVELY MAY BE REQUIRED TO WORK OR WHOSE ABSENCE WOULD BE INCONSISTENT WITH EXISTING LAW- -- SHALL BE EXCUSED FROM DUTY FOR ONE HALF DAY ON DECEMBER 24, 1946. THAT IS THE USUAL FORM OF SUCH EXECUTIVE ORDERS AND CONSISTENTLY HAS BEEN RECOGNIZED AS CONSTITUTING THE PARTICULAR DAYS, OR PORTIONS OF DAYS, SO DESIGNATED AS HOLIDAYS OR HALF-HOLIDAYS, AS THE CASE MAY BE, WITHIN THE MEANING OF THE TERM "HOLIDAY," AS USED IN VARIOUS FEDERAL STATUTES. SEE 8 COMP. DEC. 182; 20 COMP. GEN. 411, 414. COMPARE 25 COMP. GEN. 254.

IN THE ABSENCE OF A CLEAR INDICATION ON THE PART OF THE CONGRESS TO THE CONTRARY IT REASONABLY MAY BE ASSUMED THAT THE TERM "HOLIDAY" AS USED IN SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, SUPRA, IS TO BE GIVEN THE MEANING USUALLY AND NORMALLY ASCRIBED THERETO IN THE INTERPRETATION OF FEDERAL STATUTES GENERALLY. HENCE, I HAVE TO ADVISE THAT, SO FAR AS CONCERNS FEDERAL EMPLOYEES, THE EFFECT, AS WELL AS THE APPARENT PURPOSE, OF SAID EXECUTIVE ORDER NO. 9810 IS TO DECLARE A HALF- HOLIDAY ON DECEMBER 24, 1946. CONSEQUENTLY, SUCH EMPLOYEES AS ARE REQUIRED TO PERFORM DUTY ON THAT HALF-DAY--- EITHER BY ADMINISTRATIVE DIRECTION OR STATUTORY REQUIREMENT -- IF OTHERWISE WITHIN THE PURVIEW OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, ARE, AS THEREIN PROVIDED, ENTITLED TO HOLIDAY COMPENSATION FUR SUCH DUTY. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

IN THE LIGHT OF THE STATEMENTS CONTAINED IN THAT PORTION OF THE SAID DECISION TO THE PRESIDENT, CIVIL SERVICE COMMISSION, QUOTED ABOVE, THE QUESTION PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, SUPRA, IS ANSWERED IN THE AFFIRMATIVE. THE CIVILIAN PERSONNEL CIRCULARS REFERRED TO IN YOUR LETTER AUTHORIZE THE PAYMENT OF PREMIUM RATES TO WAGE BOARD EMPLOYEES FOR "HOLIDAY" WORK. HENCE, SO FAR AS CONCERNS WAGE-BOARD EMPLOYEES WHO ARE REQUIRED TO WORK THE HALF DAY OF DECEMBER 24, 1946, THEY LIKEWISE WOULD BE ENTITLED TO THE PREMIUM RATES OF COMPENSATION AS ADMINISTRATIVELY FIXED, FOR DUTY DURING THE HALF DAY ON DECEMBER 24, 1946, WHEN OTHER EMPLOYEES ARE EXCUSED UNDER THE TERMS OF EXECUTIVE ORDER NO. 9810.