B-91035, FEBRUARY 14, 1950, 29 COMP. GEN. 325

B-91035, FEBRUARY 14, 1950, 29 COMP. GEN. 325

FORTY-HOUR WEEK EMPLOYEES - ADMINISTRATIVE ADJUSTMENT OF WORKWEEK TO GIVE EMPLOYEES BENEFIT OF HOLIDAYS WHILE THE DETERMINATION OF THE DAYS WHICH SHALL CONSTITUTE THE 40 HOUR WEEKLY TOUR OF DUTY TO BE SERVED BY EMPLOYEES IS NOT, GENERALLY, A MATTER IN WHICH THE GENERAL ACCOUNTING OFFICE IS CONCERNED SO LONG AS SOUND ADMINISTRATIVE DISCRETION IS EXERCISED, AN ARBITRARY ADJUSTMENT OF THE WORK SCHEDULE, NOT BASED ON ADMINISTRATIVE NECESSITY BUT MADE SOLELY FOR THE PURPOSE OF GIVING EMPLOYEES TIME OFF ON A HOLIDAY TO WHICH THEY OTHERWISE WOULD NOT BE ENTITLED, IS OBJECTIONABLE AS BEING REPUGNANT TO GOOD ADMINISTRATIVE PRACTICE AND CONTRARY TO THE SPIRIT OF THE HOLIDAY PAY STATUTE OF JUNE 29, 1938.

COMPTROLLER GENERAL WARREN TO THE PUBLIC PRINTER, FEBRUARY 14, 1950:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1949, RAISING A QUESTION AS TO WHETHER ANY OBJECTION WOULD BE INTERPOSED BY THIS OFFICE IF THE WEEKLY WORK SCHEDULES FOR THE GUARD FORCE AND EMPLOYEES IN THE MAINTENANCE DIVISION OF YOUR OFFICE WERE FIXED WITH THE VIEW THAT NO "DAY OFF" BE ASSIGNED TO SUCH EMPLOYEES WHICH WILL FALL ON A HOLIDAY OCCURRING ON ANY DAY OF THE WEEK, MONDAY THROUGH SATURDAY.

IT IS UNDERSTOOD THAT UNDER PRESENT PRACTICES ADVANCE WORK SCHEDULES ARE SET UP FOR THESE EMPLOYEES FOR APPROXIMATE PERIODS OF FOUR MONTHS WITHOUT TAKING INTO CONSIDERATION WHETHER A HOLIDAY WILL, OR WILL NOT, FALL WITHIN THE ESTABLISHED WORKWEEK. THUS, IF A HOLIDAY FALLS ON A NON-WORKDAY OF A WORK SCHEDULE SO ESTABLISHED THEY RECEIVE NO COMPENSATION THEREFOR UNDER THE RULE SET FORTH IN 18 COMP. GEN. 191, AND 25 COMP. GEN. 836. IN THAT CONNECTION, IT IS STATED THAT ,THESE EMPLOYEES FOR A PARTICULAR WEEK MAY BE REQUIRED TO WORK 40 HOURS AND RECEIVE 40 HOURS' PAY, WHEREAS THE MAJORITY OF THE EMPLOYEES OF THE OFFICE WILL ONLY BE REQUIRED TO WORK 32 HOURS AND RECEIVE 40 HOURS' PAY.' IT IS FOR THE PURPOSE OF CORRECTING THIS SEEMING INEQUITY THAT THE ADJUSTMENT IN WORK SCHEDULES IS SUGGESTED BY YOU.

THE DUTY AND RESPONSIBILITY FOR DETERMINING WHICH OF THE SEVEN DAYS IN THE WEEK SHALL CONSTITUTE THE REGULAR 40-HOUR WORKWEEK FOR EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE IS VESTED IN THE PUBLIC PRINTER AND IS NOT, GENERALLY, A MATTER IN WHICH THE GENERAL ACCOUNTING OFFICE IS CONCERNED SO LONG AS THERE IS EXERCISED SOUND ADMINISTRATIVE DISCRETION IN THE FIXING OF SUCH TOUR OF DUTY.

IN DECISION OF SEPTEMBER 16, 1941, 21 COMP. GEN. 217, THERE WAS CONSIDERED THE QUESTION WHETHER THE DAYS IN AN EMPLOYEE'S REGULAR TOUR OF DUTY ADMINISTRATIVELY COULD BE CHANGED SO AS TO SUBSTITUTE ANOTHER DAY FOR A HOLIDAY OCCURRING WITHIN SUCH REGULAR TOUR. IN THAT DECISION IT WAS HELD THAT SUCH ACTION WOULD BE A PROPER EXERCISE OF ADMINISTRATIVE AUTHORITY IN CASES OF EMERGENCY. HOWEVER, IT WAS FURTHER STATED THAT THE ACTION "SHOULD NOT BE ARBITRARY FOR THE PURPOSE OF DEFEATING THE EMPLOYEES' RIGHT TO HOLIDAY PAY WITHOUT WORKING.' THE RATIONALE OF THAT DECISION WOULD APPEAR TO APPLY WITH EQUAL FORCE TO AN ARBITRARY ADJUSTMENT SUCH AS HERE SUGGESTED--- THAT IS, WHERE THERE IS A MANIPULATION OF THE WORKWEEK SOLELY FOR THE BENEFIT OF THE EMPLOYEE. SUCH MANIPULATION WOULD RESULT IN THE GIVING AWAY OF PUBLIC FUNDS, AND CERTAINLY WOULD NOT COME WITHIN THE FRAMEWORK OF THE HOLIDAY STATUTE, AND CLEARLY WOULD NOT BE THE EXERCISE OF SOUND ADMINISTRATIVE DISCRETION. MOREOVER, IT SHOULD BE NOTED THAT THE MAJORITY OF THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WHO WORK MONDAYS THROUGH FRIDAYS ARE DEPRIVED OF THE BENEFIT OF ALL HOLIDAYS FALLING ON SATURDAY, THEIR REGULAR NON-WORKDAY. THUS, THERE WOULD APPEAR TO BE AS MUCH JUSTIFICATION IN THEIR CASES FOR ADJUSTING TOURS OF DUTY FOR THOSE PARTICULAR WEEKS SO THAT SATURDAYS WOULD BE A PART OF THE REGULAR WORKWEEK AS THERE WOULD BE FOR MAKING THE SUGGESTED CHANGES IN THE CASE OF GUARD AND MAINTENANCE EMPLOYEES.

ACCORDINGLY, AND FOR THE REASONS ABOVE STATED, IT IS THE VIEW OF THIS OFFICE THAT ARBITRARY ADJUSTMENT SUCH AS THAT SUGGESTED IN YOUR LETTER, MADE SOLELY FOR THE PURPOSE OF GIVING EMPLOYEES TIME OFF ON A HOLIDAY TO WHICH THEY OTHERWISE WOULD NOT BE ENTITLED, WOULD BE REPUGNANT TO GOOD ADMINISTRATIVE PRACTICES AND CONTRARY TO THE SPIRIT OF THE HOLIDAY STATUTE OF JUNE 29, 1938 (52 STAT. 1246).

WITH RESPECT TO YOUR UNDERSTANDING THAT A PROCEDURE SIMILAR TO THE ONE HERE SUGGESTED HAS BEEN ESTABLISHED IN SOME OF THE OTHER GOVERNMENT AGENCIES, IT MAY BE STATED THAT IN ALL CASES INVOLVING MANIPULATIONS OF WORK SCHEDULES WHICH HAVE BEEN BROUGHT TO THE ATTENTION OF THIS OFFICE, THERE APPEARS TO HAVE BEEN AN ADEQUATE SHOWING OF ADMINISTRATIVE NECESSITY THEREFOR SEPARATE AND APART FROM ANY INCIDENTAL BENEFITS ACCRUING TO INDIVIDUAL EMPLOYEES AFFECTED THEREBY.