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IS THE LAST WORKDAY. WHICH PROVIDES THAT THE WORKDAY IMMEDIATELY PRECEDING THE REGULAR WEEKLY NONWORKDAY IS THE DESIGNATED DAY IN LIEU OF THE HOLIDAY FOR EMPLOYEES SCHEDULED TO WORK OTHER THAN MONDAY THROUGH FRIDAY. ON THE BASIS SUNDAY WAS IN LIEU OF SATURDAY AND MONDAY IN LIEU OF SUNDAY WAS NOT AUTHORIZED UNDER SECTION 4 (B) OF EXECUTIVE ORDER NO. 10358. ARE ENTITLED TO HOLIDAY PREMIUM PAY FOR THAT DAY AND ARE CHARGEABLE WITH ANNUAL LEAVE FOR ABSENCE ON TUESDAY. WAS THURSDAY. PURSUANT TO 5 U.S.C. 87C (A) (2) SHOULD HAVE HAD THAT DAY DESIGNATED IN LIEU OF THE HOLIDAY AND HAVING BEEN ERRONEOUSLY EXCUSED ON TUESDAY. SECTION 4 (B) OF EXECUTIVE ORDER NO. 10358 ONLY PERMITTING THE DESIGNATION OF A DAY IN LIEU OF A HOLIDAY WHEN SUNDAY IS A SCHEDULED WORKDAY.

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B-149239, JUN. 21, 1965, 44 COMP. GEN. 803

HOLIDAYS - OUTSIDE WORKWEEK - OTHER THAN MONDAY THROUGH FRIDAY WORKWEEKS. HOLIDAYS - OUTSIDE WORKWEEK - OTHER THAN MONDAY THROUGH FRIDAY WORKWEEKS EMPLOYEES REGULARLY SCHEDULED TO WORK TUESDAY THROUGH SATURDAY, WITH "BACK TO BACK" WORKWEEKS--- 10 DUTY DAYS, 4 OFFDAYS--- HAVING FOR THE WEEK BEGINNING FEBRUARY 14, 1965 WORKED SUNDAY THROUGH THURSDAY, THE LIEU HOLIDAY FOR WASHINGTON'S BIRTHDAY, MONDAY, FEBRUARY 22, IS THE LAST WORKDAY, THURSDAY, FEBRUARY 18, PURSUANT TO 5 U.S.C. 87C (A) (2), WHICH PROVIDES THAT THE WORKDAY IMMEDIATELY PRECEDING THE REGULAR WEEKLY NONWORKDAY IS THE DESIGNATED DAY IN LIEU OF THE HOLIDAY FOR EMPLOYEES SCHEDULED TO WORK OTHER THAN MONDAY THROUGH FRIDAY, AND SUNDAY NOT BEING A SCHEDULED WORKDAY, EXCUSING THE EMPLOYEES TUESDAY, FEBRUARY 23, ON THE BASIS SUNDAY WAS IN LIEU OF SATURDAY AND MONDAY IN LIEU OF SUNDAY WAS NOT AUTHORIZED UNDER SECTION 4 (B) OF EXECUTIVE ORDER NO. 10358, AND THE EMPLOYEES HAVING PERFORMED WORK ON THURSDAY, FEBRUARY 18, ARE ENTITLED TO HOLIDAY PREMIUM PAY FOR THAT DAY AND ARE CHARGEABLE WITH ANNUAL LEAVE FOR ABSENCE ON TUESDAY, FEBRUARY 23. A PROBATIONAL EMPLOYEE WORKING "BACK TO BACK" WORKWEEKS WITH THE REGULARLY SCHEDULED NONWORKDAYS OF SUNDAY AND MONDAY WHOSE LAST WORKDAY PRIOR TO WASHINGTON'S BIRTHDAY, MONDAY, FEBRUARY 22, 1965, WAS THURSDAY, FEBRUARY 18, PURSUANT TO 5 U.S.C. 87C (A) (2) SHOULD HAVE HAD THAT DAY DESIGNATED IN LIEU OF THE HOLIDAY AND HAVING BEEN ERRONEOUSLY EXCUSED ON TUESDAY, FEBRUARY 23, SECTION 4 (B) OF EXECUTIVE ORDER NO. 10358 ONLY PERMITTING THE DESIGNATION OF A DAY IN LIEU OF A HOLIDAY WHEN SUNDAY IS A SCHEDULED WORKDAY, THE EMPLOYEE MUST BE PLACED ON LEAVE WITHOUT PAY FOR THE EXCUSED DAY WHEN THE OFFICE WAS NOT CLOSED.

TO THE SECRETARY OF THE INTERIOR, JUNE 21, 1965:

BY LETTER OF MAY 25, 1965, THE ASSISTANT SECRETARY OF THE INTERIOR PRESENTED FOR OUR DECISION FIVE QUESTIONS CONCERNING THE GRANTING OF TIME OFF FOR HOLIDAYS OCCURRING ON NONWORKDAYS, WHEN THE BASIC WORKWEEK IS OTHER THAN MONDAY THROUGH FRIDAY. THE QUESTIONS ARE STATED AND ANSWERED HEREAFTER.

THE ASSISTANT SECRETARY'S LETTER SHOWS THAT ONE OF YOUR FIELD INSTALLATIONS ENCOUNTERED A PROBLEM IN IDENTIFYING THE HOLIDAY IN LIEU OF WASHINGTON'S BIRTHDAY, MONDAY, FEBRUARY 22, 1965, FOR A GROUP OF EMPLOYEES WHOSE SCHEDULED WORKWEEK PROVIDED FOR SUNDAY AND MONDAY OFF, WITH TUESDAY THROUGH SATURDAY AS WORKDAYS. THE FIELD OFFICIAL ADMINISTRATIVELY DETERMINED THAT SUNDAY, FEBRUARY 21, WAS IN LIEU OF SATURDAY, AND THAT MONDAY, FEBRUARY 22, WAS IN LIEU OF SUNDAY. THEREFORE, TUESDAY, FEBRUARY 23, WAS DESIGNATED AS A HOLIDAY IN LIEU OF FEBRUARY 22, AND THE MEN WERE EXCUSED FROM WORK ON THAT DAY. REVIEWING OFFICIALS AT THE NEXT HIGHER ECHELON RULED THAT THE FIELD OFFICIAL WAS IN ERROR. IT WAS DECIDED TO TREAT THE "PREVIOUS" WORKDAY AS THE HOLIDAY AND, SINCE THE MEN HAD WORKED, TO PAY THEM THE HOLIDAY PREMIUM FOR THAT DAY AND TO CHARGE THEM ANNUAL LEAVE FOR TUESDAY, FEBRUARY 23. THE PAYROLL WAS PROCESSED IN ACCORDANCE WITH THAT DECISION.

THE LETTER FURTHER DISCLOSES THAT THE DESIGNATION OF A "LIEU HOLIDAY" WAS FURTHER COMPLICATED BY THE FACT THAT THE EMPLOYEES ARE WORKING "BACK TO BACK" WORKWEEKS WHICH PROVIDE 10 DAYS ON DUTY AND 4 DAYS OFF. THUS FOR THE WEEK BEGINNING FEBRUARY 14, THEY WORKED SUNDAY THROUGH THURSDAY, WITH NONWORKDAYS ON FRIDAY, FEBRUARY 19 AND SATURDAY, FEBRUARY 20. THIS WORKING ARRANGEMENT IS UNDERSTOOD TO BE PERMANENT.

THE QUESTIONS REFERRED TO ABOVE RELATE PRIMARILY TO THE PROBLEM OF DETERMINING WHETHER FEBRUARY 18 OR FEBRUARY 23 SHOULD BE REGARDED AS THE EMPLOYEES' HOLIDAY AND INCIDENTALLY WHETHER THE RULING IN 37 COMP. GEN. 554, B-134985, DATED FEBRUARY 27, 1958, STILL IS CONTROLLING.

FOR THE ADMINISTRATIVE WORKWEEKS IN WHICH SUNDAY IS SCHEDULED AS A WORKDAY IT IS REQUIRED BY SECTION 4 (B) OF EXECUTIVE ORDER NO. 10358, DATED JUNE 9, 1952, THAT A DAY OFF IN LIEU THEREOF BE DESIGNATED. FOR THOSE WEEKS IN WHICH SUNDAY IS A NONWORKDAY, NO DESIGNATED WORKDAY IN LIEU THEREOF IS AUTHORIZED. BUT IF A HOLIDAY FALLS ON SUCH A SUNDAY (I.E., A SUNDAY NONWORKDAY) IT IS EXCLUDED FROM THE LIEU HOLIDAYS PROVIDED BY SECTION 1 (2) OF PUB.L. 86-362, APPROVED SEPTEMBER 22, 1959, 73 STAT. 643, AND IS OBSERVED BY THE EMPLOYEE ON THE NEXT FOLLOWING WORKDAY BY VIRTUE OF SECTION 4 (A) OF EXECUTIVE ORDER NO. 10358. IF MONDAY BE A NONWORKDAY THE HOLIDAY FALLING ON THE SUNDAY IS OBSERVED ON THE FOLLOWING SCHEDULED WORKDAY. SEE OUR DECISION B 123628, MARCH 6, 1956, COPY HEREWITH.

IF, HOWEVER, SUNDAY AND MONDAY ARE NONWORKDAYS AND THE HOLIDAY FALLS ON MONDAY, AS IN THE CASE PRESENTED, THE SCHEDULED WORKDAY NEXT PRECEDING THE HOLIDAY IS TO BE REGARDED AS THE EMPLOYEE'S HOLIDAY UNDER PUB.L. 86-362. THE COURSE FOLLOWED BY THE REVIEWING OFFICIALS IS THEREFORE CORRECT.

THE QUESTIONS SUBMITTED ARE AS FOLLOWS:

"1. WAS THE ORIGINAL FIELD OFFICIAL CORRECT IN DESIGNATING FEBRUARY 23 AS A HOLIDAY IN LIEU OF FEBRUARY 22?

"2. IF YOUR ANSWER TO QUESTION 1 IS AFFIRMATIVE, COULD THE FIRST FIELD OFFICIAL ALSO HAVE CHOSEN TO DESIGNATE FEBRUARY 18, THE PREVIOUS WORKDAY AS A HOLIDAY IN LIEU OF FEBRUARY 22?

"3. IF YOUR ANSWER TO QUESTION 1 IS AFFIRMATIVE, MAY THE ACTION TAKEN BY THE REVIEWING OFFICE BE PERMITTED TO STAND, OR WILL IT BE NECESSARY TO REQUIRE REPAYMENT OF THE PREMIUM PAY GRANTED FOR FEBRUARY 18 AND THE RESTORATION OF ANNUAL LEAVE CHARGED FOR FEBRUARY 23?

"4. ASSUMING THE ACTION TAKEN BY THE REVIEWING OFFICE DESIGNATING FEBRUARY 18 AS THE HOLIDAY WAS CORRECT OR PERMISSIBLE, WAS IT ALSO CORRECT IN ITS HANDLING OF THE PROBATIONAL EMPLOYEE, OR MUST THIS EMPLOYEE BE PLACED ON LEAVE WITHOUT PAY FOR FEBRUARY 23; OR, IN LIEU THEREOF CHARGED ANNUAL LEAVE EVEN THOUGH HE HAS NOT COMPLETED 90 DAYS IN SERVICE?

"5. ASSUMING THAT YOUR ANSWERS TO QUESTIONS 1-4 ABOVE INDICATE THAT THE FINDING IN DECISION B-134985 THAT AN AGENCY MAY DESIGNATE A NON WORKDAY IN LIEU OF SUNDAY ONLY WHEN SUNDAY IS INCLUDED IN THE BASIC WORKWEEK, HAS BEEN SUPERSEDED IT WOULD APPEAR THAT THE DETERMINATION OF IN LIEU HOLIDAYS COULD BE ADMINISTRATIVELY DETERMINED BY THE AGENCY FOR UNIFORM APPLICATION THROUGHOUT THE AGENCY. DO YOU CONCUR?

IN ANSWER TO QUESTION 1, SINCE SUNDAY WAS IN FACT A NONWORKDAY, MONDAY COULD NOT BE REGARDED AS THE EMPLOYEE'S DAY OFF IN LIEU OF SUNDAY. SEE 37 COMP. GEN. 554, WHICH WE STILL CONSIDER TO BE PROPER. THE ANSWER TO THIS QUESTION IS GOVERNED BY THE EXPRESS LANGUAGE OF SECTION 1, CLAUSE 2 OF PUB.L. 86-362 AS FOLLOWS:

"/2) IF ANY SUCH DAY SHALL OCCUR ON A REGULAR WEEKLY NONWORKDAY OF ANY OFFICER OR EMPLOYEE WHOSE BASIC WORKWEEK IS OTHER THAN MONDAY THROUGH FRIDAY (* * *) THE WORKDAY IMMEDIATELY PRECEDING SUCH REGULAR WEEKLY NONWORKDAY SHALL BE HELD AND CONSIDERED TO BE A LEGAL PUBLIC HOLIDAY FOR SUCH OFFICER OR EMPLOYEE IN LIEU OF SUCH DAY WHICH SO OCCURS ON SUCH REGULAR WEEKLY NONWORKDAY.'

ACCORDINGLY THIS QUESTION IS ANSWERED IN THE NEGATIVE.

IN REPLY TO QUESTION 2, AND IN VIEW OF THE ANSWER TO QUESTION 1, IT WAS REQUIRED THAT FEBRUARY 18 BE CONSIDERED AS THE HOLIDAY.

IN ANSWER TO QUESTION 3, OUR ANSWER TO QUESTION 2 REQUIRES THAT WE VIEW THE ACTION TAKEN BY THE REVIEWING OFFICIALS AS PROPER. THEREFORE, SUCH ACTION SHOULD NOT BE DISTURBED.

RESPONSIVE TO QUESTION 4, SINCE THE ACTION PRESCRIBED BY THE REVIEWING OFFICE IS CORRECT AND SINCE WE UNDERSTAND THAT THE OFFICE WAS NOT CLOSED ON FEBRUARY 23 BECAUSE OF THE HOLIDAY THERE EXISTS NO LEGAL BASIS FOR EXCUSING THE PROBATIONAL EMPLOYEE WITHOUT LOSS OF PAY ON FEBRUARY 23. CF. 39 COMP. GEN. 393; ID. 396.

REGARDING QUESTION 5, WE ARE OF THE VIEW THAT IF BY DEPARTMENTAL OR BUREAU REGULATION THE FIRST NONWORKDAY IN THE ADMINISTRATIVE WORKWEEK IS REGARDED AS THE DAY OFF IN LIEU OF SUNDAY (EXCEPT WHEN SUNDAY IS A NONWORKDAY) UNIFORMITY IN ADMINISTRATION NECESSARILY WOULD BE ACHIEVED.

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