B-69496, OCTOBER 9, 1947, 27 COMP. GEN. 191

B-69496, OCTOBER 9, 1947, 27 COMP. GEN. 191

HOLIDAYS; LEAVES OF ABSENCE - PER DIEM AND PER ANNUM EMPLOYEES HAVING ADMINISTRATIVELY ADJUSTED TOURS OF DUTY A PER DIEM EMPLOYEE SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, WHO WAS RELIEVED FROM WORKING ON ONE DAY OF HIS REGULAR TOUR OF DUTY AND REQUIRED TO WORK THE EQUIVALENT TIME ON A HOLIDAY WHICH OTHERWISE WOULD FALL OUTSIDE OF HIS USUAL TOUR OF DUTY IS TO BE REGARDED AS HAVING HAD HIS DAYS OF WORK FOR THAT PARTICULAR WEEK ADMINISTRATIVELY ADJUSTED, SO AS ENTITLE SUCH EMPLOYEE UNDER ADMINISTRATIVE REGULATIONS TO ADDITIONAL PAY FOR WORK ON A HOLIDAY FALLING WITHIN HIS REGULAR TOUR OF DUTY. A CLASSIFIED PER ANNUM EMPLOYEE WHO WAS RELIEVED FROM WORKING ON ONE DAY OF HIS BASIC ADMINISTRATIVE WORKWEEK AND REQUIRED TO WORK THE EQUIVALENT TIME ON A HOLIDAY WHICH OTHERWISE WOULD FALL OUTSIDE OF HIS USUAL BASIC WORKWEEK IS TO BE REGARDED AS HAVING HAD HIS DAYS OF WORK FOR THAT PARTICULAR WEEK ADMINISTRATIVELY ADJUSTED, SO AS TO ENTITLE SUCH EMPLOYEE TO COMPENSATION AT THE HOLIDAY RATE PRESCRIBED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, FOR WORK ON A HOLIDAY FALLING WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK. ANNUAL OR SICK LEAVE MAY NOT BE CHARGED AGAINST AN EMPLOYEE, WHETHER EMPLOYED ON A PER DIEM BASIS SUBJECT TO THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, OR ON PER ANNUM CLASSIFIED BASIS, FOR ABSENCE ON A HOLIDAY ON WHICH HE WOULD OTHERWISE BE REQUIRED TO WORK BY REASON OF AN ADMINISTRATIVE ADJUSTMENT OF HIS BASIC 40-HOUR WORKWEEK WHICH RELIEVED HIM FROM WORKING ON ONE DAY AND REQUIRED THAT THE EQUIVALENT TIME BE WORKED ON THE HOLIDAY; BUT IT IS WITHIN THE ADMINISTRATIVE DISCRETION, AS IN THE NATURE OF A DISCIPLINARY MEASURE, TO DEDUCT ONE DAY'S PAY FOR ABSENCE ON THE HOLIDAY IF THE CIRCUMSTANCES SURROUNDING THE ABSENCE JUSTIFY SUCH ACTION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, OCTOBER 9, 1947:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 8, 1947 ( JAG:IL: RT:EO), READING IN PART AS FOLLOWS:

THE FOLLOWING QUESTIONS WERE SUBMITTED TO THE NAVY DEPARTMENT BY A FIELD ACTIVITY OF THE NAVY DEPARTMENT:

IF A PER DIEM EMPLOYEE IS FURLOUGHED WITHOUT PAY ON WEDNESDAY, 19 FEBRUARY (ONE OF THE FIVE DAYS OF HIS REGULAR DUTY) TO WORK ON SATURDAY, 22 FEBRUARY (A DAY OUTSIDE OF HIS REGULAR TOUR OF DUTY, AND A HOLIDAY/---

(A) WOULD HE BE ENTITLED TO DOUBLE PAY FOR WORK PERFORMED ON SUCH DAY?

(B) IF EXCUSED FROM WORKING WOULD HE BE ENTITLED TO BASIC PAY WITHOUT CHARGE TO LEAVE?

(C) WOULD THE ANSWER BE THE SAME IN THE CASE OF A GROUP IVB EMPLOYEE?

PERTINENT PROVISIONS OF NAVY CIVILIAN PERSONNEL INSTRUCTIONS ARE QUOTED AS FOLLOWS:

N.C.P.I. 250.7-13I REV. II:

"I. HOLIDAY--- ADDITIONAL PAY FOR WORK ON.---ALL WAGE BOARD EMPLOYEES WHO ARE REQUIRED TO WORK ON A HOLIDAY OR CLOSED DAY FALLING WITHIN THEIR REGULAR 40-HOUR WORKWEEK OR TOUR OF DUTY, SHALL RECEIVE FOR NOT EXCEEDING 8 HOURS OF SUCH WORK, EXCLUDING PERIODS WHEN IN A LEAVE STATUS, COMPENSATION AT THE RATE OF TWICE THE REGULAR SCHEDULE RATE OF PAY, IN LIEU OF THE REGULAR SCHEDULE RATE OF PAY FOR NOT EXCEEDING 8 HOURS. * *

"/1) HOLIDAY--- OUTSIDE WORKWEEK.--- AN EMPLOYEE IS NOT ENTITLED TO COMPENSATION AT THE HOLIDAY PREMIUM RATE FOR WORK ON A HOLIDAY OR CLOSED DAY FALLING OUTSIDE OF HIS 40-HOUR WORKWEEK OR TOUR OF DUTY. SUCH DAYS SHALL BE TREATED IN THE SAME MANNER AS OTHER DAYS FALLING OUTSIDE OF THE 40-HOUR WORKWEEK, AND THE USUAL OVERTIME PROVISIONS APPLY.'

NOTE: THE COMPTROLLER GENERAL'S DECISION OF FEBRUARY 7, 1946 (B 53383), RECOGNIZED THE AUTHORITY OF THE SECRETARY OF THE NAVY TO ESTABLISH HOLIDAY PREMIUM RATES OF PAY FOR WAGE BOARD EMPLOYEES.

N.C.P.I. 85.2-3J REV. I:

"J. FURLOUGH WITHOUT PAY.--- A PER DIEM EMPLOYEE MAY BE FURLOUGHED WITHOUT PAY ON ONE OR MORE OF THE 5 DAYS OF HIS REGULAR TOUR OF DUTY FOR A TIME EQUIVALENT TO THE NUMBER OF HOURS HE IS NEEDED FOR WORK ON DAYS OUTSIDE OF HIS REGULAR TOUR OF DUTY. SUCH ACTION SHALL BE TAKEN IN ADVANCE AND SHALL NOT BE TAKEN FOR THE PURPOSE OF ARBITRARILY DEPRIVING AN EMPLOYEE OF OVERTIME PAY.'

THE REGULATIONS COVERING PER ANNUM ( GROUP IVB) EMPLOYEES ARE SUBSTANTIALLY THE SAME AS THOSE COVERING PER DIEM EMPLOYEES. FOR THIS REASON THEY ARE NOT QUOTED.

IT IS UNDERSTOOD THAT THE PER DIEM EMPLOYEES TO WHOM YOU REFER ARE THOSE WHOSE HOURS OF EMPLOYMENT ARE SUBJECT TO THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, WHICH PROVIDES, INTER ALIA, THAT THE REGULAR HOURS OF LABOR OF THOSE EMPLOYEES WHOSE COMPENSATION IS FIXED BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES SHALL BE NOT MORE THAN 40 PER WEEK, AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF. ALSO, IT IS UNDERSTOOD THAT THEY ARE SUCH AS MAY BE CONSIDERED "REGULAR EMPLOYEES" WITHIN THE MEANING OF THE ACT OF JUNE 29, 1938, 52 STAT. 1246, WHICH SAVES REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT, WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS, THEIR REGULAR COMPENSATION WHEN THEY ARE RELIEVED OR PREVENTED FROM WORKING SOLELY ON ACCOUNT OF THE OCCURRENCE OF A HOLIDAY.

UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, SUPRA, IT HAS BEEN HELD THAT IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE 40-HOUR WEEKLY TOUR OF DUTY ON ANY OF THE SEVEN DAYS OF ANY WEEK. 21 COMP. GEN. 965; 18 ID. 206; 13 ID. 295; ID. 307. THAT IS TO SAY, WHERE THE EXIGENCIES OF THE SERVICE REQUIRE AN ADJUSTMENT OF THE DAYS OF WORK IN ANY WEEK, SUCH ADJUSTMENT MAY BE MADE ADMINISTRATIVELY FOR THAT PARTICULAR WEEK. THE SO- CALLED "FURLOUGH WITHOUT PAY" PROCEDURE PROVIDED IN N.C.P.I. 85.2-3J, REV. I, QUOTED IN YOUR LETTER, SUPRA, WHEREBY AN EMPLOYEE IS RELIEVED FROM WORKING ON ONE OR MORE DAYS OF THE FIVE DAYS OF HIS REGULAR TOUR OF DUTY FOR A TIME EQUIVALENT TO THE NUMBER OF HOURS HE IS NEEDED FOR WORK ON DAYS OUTSIDE OF HIS REGULAR TOUR OF DUTY FOR A TIME EQUIVALENT TO THE NUMBER OF HOURS HE IS NEEDED FOR WORK ON DAYS OUTSIDE OF HIS REGULAR TOUR OF DUTY ACTUALLY IS, IN RESPECT OF THE INVOLVED EMPLOYEE, AN ADMINISTRATIVE ADJUSTMENT OF THE DAYS OF WORK FOR THAT PARTICULAR WEEK. THE EFFECT IS THE SAME REGARDLESS OF THE PROCEDURE USED AND OF THE DAYS FIXED, AS WORK DAYS FOR THAT WEEK NECESSARILY MUST BE CONSIDERED AS THE REGULAR TOUR OF DUTY FOR THAT WEEK. CF. 21 COMP. GEN. 217.

IT FOLLOWS THAT THE LAWS AND REGULATIONS RELATING TO OVERTIME PAY, LEAVE, AND HOLIDAY PAY ARE FOR APPLYING ON THE BASIS OF THE CHANGED WORK DAYS IRRESPECTIVE OF ANY ADMINISTRATIVE DIFFICULTIES WHICH YOUR LETTER STATES MIGHT BE ENCOUNTERED IN APPLYING SUCH LAWS AND REGULATIONS. CERTAINLY, NEITHER THE RIGHTS AND OBLIGATIONS OF EITHER THE GOVERNMENT OR THE EMPLOYEES CONCERNED COULD BE ALTERED UPON ANY SUCH BASIS. APPLYING THE NAVY DEPARTMENT REGULATION WHICH PROVIDES FOR THE PAYMENT OF ADDITIONAL PAY FOR WORK ON A HOLIDAY FALLING WITHIN THE REGULAR 40-HOUR WORKWEEK OR TOUR OF DUTY QUOTED IN YOUR LETTER, QUESTION (A) IS FOR ANSWERING IN THE AFFIRMATIVE SO FAR AS PER DIEM EMPLOYEES ARE CONCERNED.

THE ESTABLISHMENT OF A BASIC ADMINISTRATIVE WORKWEEK FOR GROUP IVB EMPLOYEES (THOSE PER ANNUM EMPLOYEES WHOSE POSITIONS ARE SUBJECT TO THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED) IS REQUIRED BY SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303, WHICH MAKES IT THE DUTY OF THE HEADS OF THE DEPARTMENTS AND ESTABLISHMENTS TO ESTABLISH A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS AND TO REQUIRE THAT THE HOURS OF WORK IN SUCH WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS. THAT SECTION AND RELATED PROVISIONS OF THE SAME ACT HAVE BEEN HELD TO CONTEMPLATE CLEARLY THAT EACH WEEK OF THE YEAR SHALL BE REGARDED AS A SEPARATE AND DISTINCT UNIT FOR THE PURPOSE OF COMPUTING OVERTIME COMPENSATION. 25 COMP. GEN. 205. LIKEWISE EACH WEEK OF THE YEAR IS TO BE REGARDED AS A SEPARATE AND DISTINCT UNIT WHEN IT COMES TO FIXING THE HOURS AND DAYS OF WORK FOR A PARTICULAR WEEK. WHERE, BY PROPER ADMINISTRATIVE ACTION--- WHETHER BY ADMINISTRATIVE REGULATIONS SUCH AS THOSE ABOVE PROVIDING A "FURLOUGH" PROCEDURE, OR OTHERWISE--- THE DAYS OF WORK IN ANY PARTICULAR WEEK ARE SO FIXED THAT ONE OF THE DAYS OF WORK INCLUDED IN THE BASIC WORKWEEK OF 40 HOURS FALLS ON A HOLIDAY, COMPENSATION 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, MUST BE PAID TO AN EMPLOYEE WHO ACTUALLY WORKS ON THAT HOLIDAY. ACCORDINGLY, QUESTION (A) ALSO IS FOR ANSWERING IN THE AFFIRMATIVE AS REGARDS GROUP IVB EMPLOYEES.

WITH REFERENCE TO QUESTION (B), YOUR ATTENTION IS INVITED TO THE DECISION REPORTED IN 21 COMP. GEN. 901, IN WHICH IT WAS HELD THAT UNDER THE PLAIN PROVISIONS OF THE ACT OF MARCH 2, 1940, 54 STAT. 38, ANNUAL OR SICK LEAVE MAY NOT BE CHARGED AGAINST ANY EMPLOYEE FOR ABSENCE ON A HOLIDAY ON WHICH HE OTHERWISE WOULD BE REQUIRED TO WORK BY ADMINISTRATIVE ORDER, BUT THAT IT IT IS WITHIN ADMINISTRATIVE DISCRETION, AS IN THE NATURE OF A DISCIPLINARY MEASURE, TO REFUSE TO AUTHORIZE OR APPROVE ABSENCE ON THE HOLIDAY AND TO DEDUCT ONE DAY'S PAY FOR FAILURE TO WORK ON A HOLIDAY IF IT BE DETERMINED ADMINISTRATIVELY THAT THE EXIGENCIES OF THE SITUATION IN THE INDIVIDUAL CASE DO NOT JUSTIFY ADMINISTRATIVE ACTION EXCUSING THE EMPLOYEE FROM WORKING BECAUSE OF THE OCCURRENCE OF THE HOLIDAY, PARTICULARLY WHERE THERE WAS ANY REASON TO BELIEVE AN EMPLOYEE DELIBERATELY WAS TRYING TO AVAIL HIMSELF OF AN ABSENCE BECAUSE IT WOULD NOT BE CHARGED AS LEAVE. THAT DECISION IS APPLICABLE TO BOTH PER DIEM AND GROUP IVB EMPLOYEES. QUESTIONS (B) AND (C) ARE ANSWERED ACCORDINGLY.