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WAGE BOARD EMPLOYEES - EXCUSING FROM WORK - ABSENCES OCCASIONED BY ACTS OF GOD OR OTHER EMERGENCY CONDITIONS PER DIEM WAGE BOARD EMPLOYEES WHO ARE PREVENTED FROM REPORTING FOR WORK BY AN ACT OF GOD. EMERGENCY CONDITIONS OTHER THAN ACTS OF GOD WHICH ARE BEYOND CONTROL OF THE EMPLOYEES OR THE AGENCY. OR WHEN AN ACTIVITY IS CLOSED BY ADMINISTRATIVE ORDER. 1952: REFERENCE IS MADE TO THE UNDER SECRETARY'S LETTER OF FEBRUARY 11. REQUESTING A DECISION AS TO WHETHER PER DIEM WAGE BOARD EMPLOYEES OF THE NAVY DEPARTMENT MAY BE EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO ANNUAL LEAVE UNDER CIRCUMSTANCES WHICH BY DECISIONS OF THE COMPTROLLER OF THE TREASURY AND OF THIS OFFICE HAVE BEEN HELD TO BE SUFFICIENT TO WARRANT THE EXCUSING OF PER ANNUM EMPLOYEES.

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B-108085, JUNE 17, 1952, 31 COMP. GEN. 663

WAGE BOARD EMPLOYEES - EXCUSING FROM WORK - ABSENCES OCCASIONED BY ACTS OF GOD OR OTHER EMERGENCY CONDITIONS PER DIEM WAGE BOARD EMPLOYEES WHO ARE PREVENTED FROM REPORTING FOR WORK BY AN ACT OF GOD, FAILURE OF TRANSPORTATION FACILITIES, EMERGENCY CONDITIONS OTHER THAN ACTS OF GOD WHICH ARE BEYOND CONTROL OF THE EMPLOYEES OR THE AGENCY, OR WHEN AN ACTIVITY IS CLOSED BY ADMINISTRATIVE ORDER, MAY NOT BE EXCUSED WITHOUT LOSS OF COMPENSATION OR CHARGE TO ANNUAL LEAVE IN THE ABSENCE OF A SPECIFIC LEGISLATIVE PROVISION THEREFOR.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JUNE 17, 1952:

REFERENCE IS MADE TO THE UNDER SECRETARY'S LETTER OF FEBRUARY 11, 1952, REQUESTING A DECISION AS TO WHETHER PER DIEM WAGE BOARD EMPLOYEES OF THE NAVY DEPARTMENT MAY BE EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO ANNUAL LEAVE UNDER CIRCUMSTANCES WHICH BY DECISIONS OF THE COMPTROLLER OF THE TREASURY AND OF THIS OFFICE HAVE BEEN HELD TO BE SUFFICIENT TO WARRANT THE EXCUSING OF PER ANNUM EMPLOYEES.

THE SAID LETTER REVIEWS CERTAIN EARLIER DECISIONS WHICH FORMED THE BASIS FOR THE RULE THAT PER DIEM EMPLOYEES MAY NOT BE PAID FOR DAYS ON WHICH THEY PERFORM NO WORK UNLESS SPECIFIC LEGISLATIVE PROVISION HAS BEEN MADE THEREFOR. THE LETTER PROCEEDS TO COMMENT UPON LATER STATUTES MODIFYING THE RIGHTS OF BOTH PER ANNUM AND PER DIEM EMPLOYEES THROUGH WHICH CERTAIN BASIC DIFFERENCES BETWEEN THE TWO TYPES OF EMPLOYMENT HAVE BEEN REMOVED. HOWEVER, THE LETTER POINTS OUT THAT THE EARLIER RULE HAS NEVER BEEN EXPRESSLY REPEALED EITHER BY DECISION OR LEGISLATION AND THAT, IN ORDER THAT BOTH CLASSES OF EMPLOYEES RECEIVE EQUAL TREATMENT IT IS THE DEPARTMENT'S POLICY TO PLACE BOTH PER ANNUM AND PER DIEM EMPLOYEES IN AN ANNUAL LEAVE STATUS EITHER WHEN A PLANT IS CLOSED FOR ADMINISTRATIVE REASONS ( OFFICE DECISION OF OCTOBER 4, 1937, 17 COMP. GEN. 298), OR WHEN, BECAUSE OF OTHER CIRCUMSTANCES, PER ANNUM EMPLOYEES PROPERLY COULD BE EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO ANNUAL LEAVE ( OFFICE DECISION OF AUGUST 20, 1948, 28 COMP. GEN. 111). THE UNDER SECRETARY'S LETTER CONTINUES AS FOLLOWS:

IT HAS COME TO THE ATTENTION OF THE NAVY DEPARTMENT THAT CERTAIN OTHER DEPARTMENTS CONSIDER THAT THEY HAVE AUTHORITY TO EXCUSE BOTH PER ANNUM AND PER DIEM EMPLOYEES WITHOUT CHARGE TO LEAVE OR LOSS OF PAY UNDER CERTAIN CONDITIONS, INCLUDING NOT ONLY CLIMATIC CONDITIONS (ACTS OF GOD) BUT ALSO LOCAL HOLIDAYS, AND ADMINISTRATIVE CLOSING OF INSTALLATIONS. IN SUPPORT OF THIS VIEW THE FOLLOWING POINTS MAY BE MADE: (1) THE HOLIDAY PAY ACT OF 1938, SUPRA, INDICATED AN INTENT ON THE PART OF CONGRESS TO EQUALIZE THE PRIVILEGES OF PER DIEM AND PER ANNUM EMPLOYEES WITH RESPECT TO DAYS ON WHICH NO WORK IS PERFORMED DUE TO THE OCCURRENCE OF A HOLIDAY OR TO THE CLOSING OF AN INSTALLATION BY EXECUTIVE ORDER. (2) THE FEDERAL EMPLOYEES' PAY ACTS OF 1945, 59 STAT. 295, AND 1946, 60 STAT. 216, HAVE ELIMINATED THE MAJOR PAY DIFFERENCES BETWEEN PER DIEM AND PER ANNUM EMPLOYEES AND HAVE DESTROYED THE THEORETICAL BASIS FOR THE DISTINCTIONS PREVIOUSLY DRAWN; BOTH GROUPS ARE NOW PAID ON THE BASIS OF A 40-HOUR WORKWEEK; IF EITHER GROUP CAN BE PAID FOR DAYS ON WHICH THEY DO NOT WORK AND ARE NOT ON LEAVE, IT SHOULD BE POSSIBLE TO PAY THE OTHER GROUP ALSO FOR SUCH DAYS. (3) THE DECISION OF AUGUST 20, 1948, MAY BE CONSTRUED TO APPLY TO BOTH GROUPS SINCE IT DOES NOT INDICATE WHETHER THE EMPLOYEES CONCERNED WERE PER ANNUM OR PER DIEM OR BOTH. FURTHER, AN EARLIER DECISION QUOTED AND FOLLOWED THEREIN (A-84584 OF APRIL 1, 1947) SPECIFICALLY STATES THAT IT APPLIES TO "EMPLOYEES BEING OTHERWISE IN A PAY STATUS," A PHRASE WHICH WOULD BE CONSIDERED TO COVER WAGE-BOARD AS WELL AS PER ANNUM EMPLOYEES.

YOUR DECISION IS REQUESTED AS TO WHETHER THE DEPARTMENT OF THE NAVY MAY EXCUSE PER DIEM (WAGE-BOARD) AS WELL AS PER ANNUM EMPLOYEES FOR AN ENTIRE DAY OR MORE WITHOUT CHARGE TO LEAVE OR LOSS OF PAY,

(1) WHEN THEY ARE PREVENTED FROM REPORTING FOR WORK BY A FLOOD, SNOWSTORM, TYPHOON, EARTHQUAKE, OR OTHER ACT OF GOD, OR BY TRANSPORTATION FAILURES OCCASIONED THEREBY;

(2) WHEN THEY ARE PREVENTED FROM REPORTING FOR WORK, OR ARE PREVENTED FROM WORKING, BY CONDITIONS WHICH ARE NOT ACTS OF GOD BUT WHICH ARE BEYOND THE CONTROL OF THE EMPLOYEES OR THE DEPARTMENT SUCH AS TRANSPORTATION STRIKES, EXTREME EMERGENCY CONDITIONS, ETC.

(3) WHEN WORK IS IMPOSSIBLE DUE TO BREAKDOWN OF MACHINERY, LACK OF MATERIAL, ETC.

(4) WHEN THE ACTIVITY IS CLOSED FOR ANY REASON BY ADMINISTRATIVE ORDER.

THE HOLIDAY PAY ACT OF 1938, 52 STAT. 1246, SPECIFICALLY SETS FORTH THE HOLIDAYS FOR WHICH PER DIEM EMPLOYEES MAY BE PAID WITHOUT HAVING PERFORMED DUTY BUT THE SAID ACT DOES NOT EXPRESSLY PROVIDE FOR ADMINISTRATIVELY ESTABLISHED NONWORKDAYS AND, THEREFORE, IT MUST BE CONCLUDED THAT THE STATUTE DID NOT CONTEMPLATE PAYMENT OF COMPENSATION TO SUCH EMPLOYEES FOR SUCH DAYS. FURTHER, IN NO INSTANCE HAS THIS OFFICE RULED, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR, THAT PER DIEM WAGE BOARD EMPLOYEES ARE ENTITLED TO BE ADMINISTRATIVELY EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO ANNUAL LEAVE--- THE DECISIONS REFERRED TO IN THE UNDER SECRETARY'S LETTER OF FEBRUARY 11, PERTAINED ONLY TO PER ANNUM EMPLOYEES.

IN SUCH CONNECTION, WHILE CONDITIONS OF EMPLOYMENT OF WAGE BOARD PER DIEM EMPLOYEES AND OF PER ANNUM EMPLOYEES ARE MORE NEARLY PARALLEL SINCE THE ENACTMENT OF LEGISLATION CULMINATING IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, AS AMENDED, IT IS NOT FELT THAT SUCH LEGISLATION AUTHORIZES DEPARTMENTS AND AGENCIES TO EXCUSE PER DIEM EMPLOYEES FROM WORK WITHOUT CHARGE TO LEAVE OR LOSS OF PAY. IN FACT, THE FEDERAL EMPLOYEES PAY ACT OF 1945 EXCLUDES FROM ITS OPERATION WAGE BOARD EMPLOYEES EXCEPT AS TO THE PROVISIONS OF SECTION 203 OF THE SAID ACT, 59 STAT. 297, WHICH EXCEPTION, IN ITSELF, TENDS TO POINT UP ONE OF THE BASIC DIFFERENCES BETWEEN THE TWO CLASSES OF EMPLOYEES IN THAT IT REFLECTS THE TWO DIFFERENT METHODS OF OVERTIME COMPENSATION APPLICABLE. A FURTHER DISTINCTION BETWEEN THE TWO CLASSES OF EMPLOYEES MAY BE DRAWN IN THAT PER DIEM EMPLOYEES HAVE BEEN HELD TO BE ENTITLED TO TRAVEL TIME ON NONWORKDAYS WHEREAS PER ANNUM EMPLOYEES ARE NOT. SEE 24 COMP. GEN. 65; ID. 210; CF. 25 COMP. GEN. 121; ID. 317.

IN VIEW OF THE FOREGOING, AND OF THE FACT THAT ESTABLISHED PRACTICES RELATING TO PER DIEM WAGE BOARD EMPLOYEES GENERALLY HAVE BEEN MODIFIED HERETOFORE BY LEGISLATION RATHER THAN BY DECISION OF THIS OFFICE, IT IS CONCLUDED THAT THE LONG STANDING RULE SHOULD NOT BE CHANGED.

ACCORDINGLY, THE QUESTIONS CONTAINED IN THE SAID SUBMISSION ARE ANSWERED IN THE NEGATIVE.

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