B-67539, JULY 30, 1947, 27 COMP. GEN. 42

B-67539, JULY 30, 1947, 27 COMP. GEN. 42

SUNDAYS AND HOLIDAYS - COMPENSATION - HALF-DAY ON DECEMBER 24, 1946 PURSUANT TO EXECUTIVE ORDER NO. 9810 DECLARING A HALF-HOLIDAY FOR FEDERAL EMPLOYEES ON DECEMBER 24, 1946, BUT NOT SPECIFYING THE PARTICULAR HOURS COMPRISING IT, IT WAS PROPER FOR AN ADMINISTRATIVE AGENCY TO ESTABLISH AS THE HALF-HOLIDAY THE LAST FOUR HOURS OF THE REGULAR WORKDAY OF EMPLOYEES HAVING OTHER THAN THE "STANDARD" WORKDAY FOR THE AGENCY CONCERNED, AND EMPLOYEES WHO WERE REQUIRED TO WORK DURING ANY PORTION OF SUCH LAST FOUR HOURS ARE ENTITLED TO COMPENSATION THEREFOR AT THE HOLIDAY RATE PRESCRIBED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. COMP. GEN. 663, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JULY 30, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 26, 1947, AS FOLLOWS:

A QUESTION HAS RISEN AS TO THE APPLICABILITY OF YOUR DECISION B 63833 (26 COMP. GEN. 663) ADDRESSED TO THE ADMINISTRATOR OF VETERANS AFFAIRS TO EMPLOYEES ENGAGED IN MULTIPLE SHIFT OPERATIONS IN THE DEPARTMENT OF COMMERCE AND AS TO WHETHER EMPLOYEES ENGAGED IN SUCH MULTIPLE SHIFT OPERATIONS AND WORKING A FULL 8-HOUR SHIFT ON DECEMBER 24, 1946 ARE ENTITLED TO HOLIDAY COMPENSATION FOR THE LAST 4 HOURS OF THEIR WORK.

DEPARTMENT ORDER NO. 40 OF THE DEPARTMENT OF COMMERCE PROVIDES AS FOLLOWS:

".01 THE OFFICIAL HOURS OF DUTY OF EMPLOYEES OF THE DEPARTMENT OF COMMERCE WORKING IN THE WASHINGTON AREA ON A SINGLE SHIFT BASIS SHALL BE FROM 8:30 A.M. TO 5:00 P.M., MONDAY THROUGH FRIDAY, WITH THIRTY MINUTES FOR LUNCH. CHANGES IN THESE HOURS OF DUTY MAY BE MADE ONLY WITH APPROVAL OF THE DIRECTOR OF PERSONNEL OF THE DEPARTMENT OF COMMERCE.

".02 THE OFFICIAL HOURS OF DUTY OF EMPLOYEES ENGAGED IN MULTIPLE SHIFT OPERATIONS SHALL BE PRESCRIBED BY THE RESPONSIBLE SUPERVISORY OFFICER AND APPROVED BY THE HEAD OF HIS PRIMARY ORGANIZATION UNIT.

".03 THE OFFICIAL HOURS OF DUTY IN THE FIELD SHALL BE AS DIRECTED BY THE HEADS OF THE PRIMARY ORGANIZATION UNITS. SUCH HOURS SHOULD BE ESTABLISHED TO CONFORM AS NEARLY AS PRACTICABLE WITH THE HOURS OF DUTY PRESCRIBED FOR EMPLOYEES IN THE WASHINGTON AREA.'

IN ACCORDANCE WITH THIS ORDER THE HOURS FROM 8:30 A.M. TO 5:00 P.M. ARE CONSIDERED AND NORMALLY REFERRED TO AS THE "STANDARD WORK DAY" AND THESE HOURS MONDAY THROUGH FRIDAY AS THE "STANDARD ADMINISTRATIVE WORKWEEK" FOR THE DEPARTMENT, WITH THE STANDARD WORK DAY BEING DIFFERENTIATED FROM THE WORK DAY FOR EMPLOYEES ENGAGED IN MULTIPLE SHIFT OPERATIONS.

EXECUTIVE ORDER NO. 9810 OF DECEMBER 12, 1946, PROVIDED AS FOLLOWS:

"BY VIRTUE OF THE AUTHORITY VESTED IN ME AS PRESIDENT OF THE UNITED STATES, IT IS HEREBY ORDERED AS FOLLOWS:

"1. THE SEVERAL EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER GOVERNMENTAL AGENCIES IN THE DISTRICT OF COLUMBIA, INCLUDING THE GENERAL ACCOUNTING OFFICE, THE GOVERNMENT PRINTING OFFICE AND THE NAVY YARD AND NAVAL STATIONS, SHALL BE CLOSED ONE-HALF DAY ON TUESDAY, DECEMBER 24, 1946, THE DAY PRECEDING CHRISTMAS DAY; AND ALL EMPLOYEES IN THE FEDERAL SERVICE IN THE DISTRICT OF COLUMBIA, AND IN THE FIELD SERVICE OF THE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER AGENCIES OF THE GOVERNMENT, EXCEPT THOSE WHO MAY FOR SPECIAL PUBLIC REASONS BE EXCLUDED FROM THE PROVISIONS OF THIS ORDER BY THE HEADS OF THEIR RESPECTIVE DEPARTMENTS, ESTABLISHMENTS, OR AGENCIES, OR THOSE WHOSE ABSENCE FROM DUTY WOULD BE INCONSISTENT WITH THE PROVISIONS OF EXISTING LAW, SHALL BE EXCUSED FROM DUTY FOR ONE-HALF DAY ON DECEMBER 24, 1946.

"2. THIS ORDER SHALL BE PUBLISHED IN THE FEDERAL REGISTER.'

IN VIEW OF THE LANGUAGE OF THIS EXECUTIVE ORDER THAT "THE SEVERAL EXECUTIVE DEPARTMENTS * * * SHALL BE CLOSED ONE-HALF DAY * * * AND ALL EMPLOYEES * * * SHALL BE EXCUSED FROM DUTY FOR ONE-HALF DAY ON DECEMBER 24, 1946" (ITALICS SUPPLIED) AND IN VIEW OF YOUR DECISION B 62569 OF DECEMBER 20, 1946 (26 COMP. GEN. 431), TO THE PRESIDENT, CIVIL SERVICE COMMISSION, WHEREIN IT WAS STATED:

"SO FAR AS CONCERNS FEDERAL EMPLOYEES, THE EFFECT, AS WELL AS THE 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 FOR SUCH DUTY.'

IT APPEARED TO THE DEPARTMENT THAT THE CLEAR INTENT OF THE EXECUTIVE ORDER, AND YOUR RULING THEREON, WAS TO EXCUSE ALL FEDERAL EMPLOYEES, INSOFAR AS LEGAL AND PRACTICABLE, FOR ONE-HALF THEIR NORMAL WORK DAY ON DECEMBER 24.

ON THE BASIS OF THE CITED ORDER AND DECISION, THE DIRECTOR OF PERSONNEL OF THE DEPARTMENT OF COMMERCE ISSUED A MEMORANDUM TO ALL BUREAUS AND OFFICES OF THE DEPARTMENT, QUOTING FROM THE EXECUTIVE ORDER AND STATING THAT THE STANDARD WORK-DAY OF THE DEPARTMENT WOULD END AT 12:30 P.M. ON TUESDAY, DECEMBER 24, 1946. THE WEATHER BUREAU AND THE CIVIL AERONAUTICS ADMINISTRATION, TWO OF THE BUREAUS OF THE DEPARTMENT HAVING MULTIPLE-SHIFT OPERATIONS, ISSUED ADDITIONAL INSTRUCTIONS TO COVER EMPLOYEES ON MULTIPLE- SHIFT OPERATIONS. THE WEATHER BUREAU SENT THE FOLLOWING MESSAGE TO ITS FIELD OFFICES:

" EXECUTIVE ORDER 9810 COVERS CLOSING OF OFFICES FOR ONE-HALF DAY DECEMBER 24. FOUR HOURS ANNUAL OR SICK LEAVE OR COMPENSATORY TIME OR EIGHT HOURS LWOP WILL BE CHARGED IF AN EMPLOYEE DOES NOT WORK ON DECEMBER 24. COMPENSATION FOR NECESSARY WORK UP TO FOUR HOURS IN EXCESS OF THE FIRST FOUR HOURS WORKED DECEMBER 24, WILL BE AT HOLIDAY RATES. EXAMPLE: AN EMPLOYEE STARTING A TOUR OF DUTY AT 7 P.M. DECEMBER 23 AND ENDING AFTER THREE HOURS DECEMBER 24 AND ANOTHER TOUR OF DUTY AT 7 P.M. DECEMBER 24 AND ENDING AFTER THREE HOURS DECEMBER 25 WILL BE ENTITLED TO NINE HOURS REGULAR AND SEVEN HOURS HOLIDAY PAY FOR THE TWO TOURS OF DUTY IF THE HOLIDAY FALL WITHIN THE EMPLOYEE'S REGULAR WORK WEEK. COMPENSATORY TIME OFF MAY NOT BE GRANTED FOR THE LAST FOUR HOURS WORKED ON DECEMBER 24.'

THE FOLLOWING TELEGRAM WAS DISPATCHED BY THE CIVIL AERONAUTICS ADMINISTRATION TO ITS FIELD OFFICES:

"EMPLOYEES PERFORMING REGULAR DUTY EXCEEDING FOUR HOURS ON DECEMBER 24, ENTITLED TO HOLIDAY RATE FOR EXCESS TIME UP TO FOUR HOURS. TIME IN EXCESS OF EIGHT HOURS TO BE PAID AT OVERTIME ES.'

BUREAUS AND OFFICES OF THE DEPARTMENT HAVING MULTIPLE-SHIFTS IN THE WASHINGTON AREA ISSUED SIMILAR ORAL INSTRUCTIONS WITH RESPECT TO THEIR MULTIPLE-SHIFT OPERATIONS.

ACCORDINGLY, MULTIPLE SHIFT EMPLOYEES REQUIRED TO WORK THEIR FULL REGULAR SHIFTS ON DECEMBER 24, WERE PAID AT HOLIDAY RATES FOR THE LAST 4 HOURS OF WORK ON THAT DAY IN THE SAME MANNER AS THEY ARE PAID AT HOLIDAY RATES FOR SHIFTS WORKED ON A FULL HOLIDAY BUT FALLING OUTSIDE THE HOURS OF THE "STANDARD WORK-DAY.'

HOWEVER, EXCEPTION HAS BEEN TAKEN BY THE GENERAL ACCOUNTING OFFICE IN ITS AUDIT TO PAY ROLLS OF THE 2ND AND 3RD REGIONS OF THE CIVIL AERONAUTICS ADMINISTRATION TO SALARY PAYMENTS FOR 4 HOURS AT HOLIDAY RATES ON DECEMBER 24, 1946, MADE TO APPROXIMATELY 756 EMPLOYEES ENGAGED IN MULTIPLE-SHIFT OPERATIONS WHO WORKED THEIR REGULAR FULL 8 HOURS SHIFT ON THAT DAY. THIS EXCEPTION IS BASED ON THE HOLDING THAT THE HOURS FROM 12:30 P.M. TO 5:00 P.M. CONSTITUTE THE HALF-HOLIDAY AUTHORIZED BY THE EXECUTIVE ORDER 9810 AND THAT UNDER YOUR DECISION NO. B-63833 ADDRESS TO THE ADMINISTRATOR OF VETERANS' AFFAIRS NONE OF THE REMAINING 20 HOURS OF DECEMBER 24 CAN BE CONSIDERED AS BEING WITHIN THE HOURS FOR WHICH COMPENSATION AT HOLIDAY RATES MAY BE PAID.

THE INTENT OF INSTRUCTIONS OF THE DEPARTMENT REFERRED TO ABOVE WAS TO ESTABLISH FOR EMPLOYEES WORKING A STANDARD WORK DAY FROM 8:30 A.M. TO 5:00 P.M. A HALF-HOLIDAY FROM 12:30 P.M. TO 5:00 P.M. ON DECEMBER 24 AND FOR MULTIPLE-SHIFT EMPLOYEES A HALF-HOLIDAY CONSISTING OF THE LAST 4 HOURS OF THEIR WORK DAY ON DECEMBER 24.

YOUR DECISION IS THEREFORE REQUESTED AS TO WHETHER MULTIPLE SHIFT EMPLOYEES OF THE DEPARTMENT OF COMMERCE REQUIRED TO WORK THEIR REGULAR SHIFTS ON DECEMBER 24, 1946, ARE IN FACT ENTITLED TO COMPENSATION AT HOLIDAY RATES FOR THE LAST FOUR HOURS OF WORK ON THAT DAY.

AS STATED IN THAT PART OF THE DECISION OF DECEMBER 20, 1946, B 62569, 26 COMP. GEN. 431, QUOTED IN YOUR LETTER, THE EFFECT, AS WELL AS THE APPARENT PURPOSE OF EXECUTIVE ORDER 9810 OF DECEMBER 12, 1946, SO FAR AS CONCERNS FEDERAL EMPLOYEES, WAS TO DECLARE A HALF-HOLIDAY ON DECEMBER 24, 1946. SINCE THAT EXECUTIVE ORDER DID NOT SPECIFY THE PARTICULAR PORTION OF THAT DAY WHICH WAS TO CONSTITUTE THE HOLIDAY, IT IS APPARENT THAT THE RESPONSIBILITY FOR SUCH DETERMINATION DEVOLVED UPON THE APPROPRIATE ADMINISTRATIVE OFFICIALS OF THE VARIOUS DEPARTMENTS AND AGENCIES AFFECTED BY THAT EXECUTIVE ORDER. IN VIEW OF THE VARIATIONS IN THE HOURS ADMINISTRATIVELY FIXED FOR THE COMMENCEMENT AND THE END OF THE STANDARD WORKDAY IN THE SEVERAL DEPARTMENTS AND ESTABLISHMENTS, IT IS CLEAR THAT, AS BETWEEN SUCH DEPARTMENTS AND ESTABLISHMENTS, THERE COULD BE NO UNIFORMITY AS TO THE PARTICULAR TIME OF DAY AT WHICH THE HALF-HOLIDAY COMMENCED. RATHER, IT APPEARS THAT EACH DEPARTMENT AND AGENCY IN THE DISTRICT OF COLUMBIA FIXED THE TIME OF ITS CLOSING TO COINCIDE WITH THE COMPLETION OF ONE-HALF OF THE STANDARD WORKDAY FOR ITS EMPLOYEES. THE BALANCE OF THE STANDARD WORKDAY THUS CONSTITUTED THE HALF-HOLIDAY DECLARED BY EXECUTIVE ORDER 9810, SUPRA. THE ADMINISTRATIVE AUTHORITY SO TO DETERMINE THE HOURS COMPRISING THE HALF-HOLIDAY FOR ITS EMPLOYEES WORKING THE SO-CALLED "STANDARD" WORKDAY, WITHOUT REGARD TO THE DETERMINATIONS IN THAT RESPECT BY OTHER DEPARTMENTS AND AGENCIES HAVING DIFFERENT "STANDARD" WORKDAYS, REASONABLY APPEARS TO INCLUDE THE AUTHORITY--- AS A MATTER OF INTRA-AGENCY POLICY--- TO FIX FOR ITS EMPLOYEES WHOSE REGULAR TOURS OF DUTY DIFFER NOT ONLY FROM THE "STANDARD" WORKDAY BUT ALSO FROM ONE ANOTHER, THE PARTICULAR HOURS COMPRISING THE HALF-HOLIDAY FOR EACH SUCH TOUR OF DUTY. ESPECIALLY DOES THAT APPEAR TRUE WITH RESPECT TO FIELD ACTIVITIES AS TO WHICH THERE WAS NO REQUIREMENT IN THE SAID EXECUTIVE ORDER THAT SUCH OFFICES BE "CLOSED" FOR ANY PORTION OF THE DAY.

IN CONNECTION WITH THE FOREGOING, IT WILL BE NOTED THAT IN THE CIRCUMSTANCES CONSIDERED IN THE DECISION OF MARCH 6, 1947, B-63833, 26 COMP. GEN. 663, REFERRED TO IN THE OPENING PARAGRAPH OF YOUR LETTER, THE PERIOD OF THE HALF-HOLIDAY ADMINISTRATIVELY HAD BEEN ESTABLISHED BY THE CLOSING OF THE OFFICE FROM 12:00 NOON TO 5:00 P.M., DECEMBER 24, 1946. CONSEQUENTLY, IN THE ABSENCE OF ADMINISTRATIVE REGULATIONS PRESCRIBING ANY OTHER PERIOD AS CONSTITUTING THE HALF-HOLIDAY FOR EMPLOYEES WORKING OTHER THAN THE STANDARD WORKDAY, COMPENSATION AT THE HOLIDAY RATE WAS PAYABLE ONLY FOR WORK PERFORMED DURING THE PRESCRIBED PERIOD. THE SITUATION CONSIDERED IN THAT DECISION READILY IS DISTINGUISHABLE FROM THE CIRCUMSTANCES SET FORTH IN YOUR LETTER.

FROM THE INFORMATION FURNISHED IN YOUR LETTER, IT APPEARS THAT THE EFFECT OF THE REFERRED-TO INSTRUCTIONS ISSUED BY THE BUREAUS UNDER YOUR DEPARTMENT WAS TO ESTABLISH THE LAST 4 HOURS OF THE REGULAR WORKDAY OF MULTIPLE-SHIFT EMPLOYEES WHO WORKED THEIR FULL REGULAR SHIFT AS THE HALF- HOLIDAY DECLARED BY EXECUTIVE ORDER 9810. HENCE, FOR THE REASONS STATED ABOVE, SUCH EMPLOYEES WHO WERE REQUIRED TO WORK DURING ANY PORTION OF THAT PERIOD ARE ENTITLED TO COMPENSATION THEREFOR AT THE HOLIDAY RATE 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.

THE EXCEPTIONS MENTIONED IN YOUR LETTER WILL BE REVIEWED AND, WITH RESPECT THERETO, APPROPRIATE ACTION WILL BE TAKEN IN ACCORDANCE HEREWITH.