B-187520, FEB 22, 1977

B-187520, FEB 22, 1977

EMPLOYEE'S CLAIM FOR PAY ON HOLIDAY ON WHICH NO WORK WAS PERFORMED IS DENIED SINCE EMPLOYEE WAS IN NONPAY STATUS IMMEDIATELY PRECEDING AND IMMEDIATELY FOLLOWING SUCH HOLIDAY. ALSO, ALTHOUGH EMPLOYEE WAS PREVENTED FROM WORKING ON DAY AFTER HOLIDAY DUE TO PLANT SHUTDOWN, SHE WAS GIVEN ADEQUATE ADVANCE NOTICE TO SCHEDULE ANNUAL LEAVE SO AS TO HAVE SUFFICIENT LEAVE TO COVER PLANT SHUTDOWN AND NEGLECTED TO DO SO.

SHARON A. MCSHANE - COMPENSATION FOR HOLIDAY NOT WORKED:

THIS ACTION IS IN RESPONSE TO A LETTER DATED JANUARY 26, 1976, FROM MRS. SHARON A. MCSHANE, A CIVILIAN EMPLOYEE OF THE NAVAL PLANT REPRESENTATIVE OFFICE (NAVPRO), BETHPAGE, NEW YORK, CONCERNING HER CLAIM FOR PAY FOR JANUARY 1, 1976, A HOLIDAY ON WHICH SHE PERFORMED NO WORK.

MRS. MCSHANE WAS ON AUTHORIZED LEAVE WITHOUT PAY THE DAY BEFORE THE HOLIDAY OF JANUARY 1, 1976. SHE INTENDED TO WORK ON JANUARY 2, 1976, BUT WAS PREVENTED FROM WORKING BECAUSE HER OFFICE WAS CLOSED. IN THIS REGARD, ON MAY 23, 1975, NAVPRO ISSUED A NOTICE TO ALL PERSONNEL CONTAINING ANNUAL LEAVE PLANNING INFORMATION.

THE NOTICE LISTED THE DATES THE OFFICE WOULD BE CLOSED AND PROVIDED, IN PERTINENT PART:

"B. IN ADDITION TO THE ABOVE, GRUMMAN AEROSPACE CORPORATION HAS SCHEDULED A SHUTDOWN PERIOD FROM CLOSE OF BUSINESS ON 23 DECEMBER 1975 UNTIL MONDAY 5 JANUARY 1976. NAVPRO BETHPAGE OPERATION OVER THIS PERIOD CANNOT BE DETERMINED THIS FAR IN ADVANCE. HOWEVER, IN THE PAST IT HAS BEEN FOUND NECESSARY TO CLOSE DOWN DURING SUCH PERIODS DUE TO HEAT AND LIGHT CONSIDERATIONS AND LACK OF MEANINGFUL WORK WHEN THE CONTRACTOR IS CLOSED DOWN.

"C. IN THE EVENT A NAVPRO SHUTDOWN IS AGAIN FOUND NECESSARY DURING THE ABOVE PERIOD, A TOTAL OF SIX REGULAR WORKDAYS WOULD BE INVOLVED, BARRING EXECUTIVE EXCUSAL ON 26 DECEMBER AND 2 JANUARY. THE PAST PRACTICE OF ALLOWING ACCRUAL OF COMPENSATORY TIME FOR EMPLOYEES WITH INSUFFICIENT ANNUAL LEAVE IS NOW PROHIBITED BY REGULATION. THEREFORE, ALL EMPLOYEES ARE ASKED TO EXERCISE PRUDENT JUDGMENT IN SCHEDULING THEIR USE OF ANNUAL LEAVE TO INSURE A SUFFICIENT LEAVE BALANCE TO COVER THE POSSIBILITY OF A SHUTDOWN. IN THE EVENT AN EMPLOYEE DOES NOT HAVE SUFFICIENT LEAVE, CONSIDERATION WILL BE GIVEN TO REQUESTS FOR LEAVE WITHOUT PAY OR ADVANCE OF ANNUAL LEAVE, CONSISTENT WITH THE LAW AND REGULATIONS."

MRS. MCSHANE WAS ON LEAVE FROM DECEMBER 19, 1975, THROUGH JANUARY 2, 1976. SHE HAD SUFFICIENT ANNUAL LEAVE TO CARRY HER THROUGH DECEMBER 29 AND WAS ON LEAVE WITHOUT PAY ON DECEMBER 30 AND 31. THEREFORE, SHE WAS PLACED IN A LEAVE WITHOUT PAY STATUS FOR JANUARY 2, 1976, THE DAY AFTER THE NEW YEAR'S HOLIDAY. MRS. MCSHANE RETURNED TO WORK ON THE NEXT WORKING DAY, JANUARY 5, 1975.

THE NAVY DENIED MRS. MCSHANE'S CLAIM FOR PAY FOR THE HOLIDAY ON JANUARY 1, 1976, BECAUSE THE CIVILIAN MANPOWER MANAGEMENT INSTRUCTIONS (CMMI) 550- S1, MARCH 29, 1971, PROVIDE THAT "AN EMPLOYEE WILL NOT RECEIVE PAY FOR A HOLIDAY OCCURRING WITHIN A PERIOD OF LEAVE OR ABSENCE WITHOUT PAY; I.E., WHEN THE ABSENCE IN A NONPAY STATUS OCCURS BOTH BEFORE AND AFTER THE HOLIDAY."

THE ABOVE-CITED CMMI PROVISION IS CONSISTENT WITH OUR DECISIONS WHICH PROVIDE THAT IN THE ABSENCE OF A STATUTE PROVIDING SPECIFICALLY TO THE CONTRARY, AN EMPLOYEE WHO IS IN A NONPAY STATUS IMMEDIATELY PRECEDING AND IMMEDIATELY FOLLOWING A HOLIDAY, IS NOT ENTITLED TO PAY FOR THE INTERVENING HOLIDAY ON WHICH NO WORK IS PERFORMED. 9 COMP.GEN. 350 (1930). MRS. MCSHANE WAS GIVEN AN OPPORTUNITY EARLY IN THE YEAR TO ARRANGE HER LEAVE SO THAT SHE COULD COMPLY WITH THE REQUIREMENT OF CMMI 550-S1 AND RECEIVE PAY FOR THE HOLIDAY. HOWEVER, SHE DID NOT ARRANGE TO TAKE HER ANNUAL LEAVE AS SUGGESTED IN THE NOTICE AND SHE WAS IN A NONPAY STATUS IMMEDIATELY PRECEDING AND IMMEDIATELY FOLLOWING THE HOLIDAY. THEREFORE, SHE IS NOT ENTITLED TO PAY FOR JANUARY 1, 1976.