# United States v. Bergh/Dissent Burton

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Burton
United States Supreme Court
352 U.S. 40
United States v. Bergh
Argued: Oct. 15, 1956. --- Decided: Nov 19, 1956
Mr. Justice BURTON, with whom Mr. Justice BLACK and Mr. Justice FRANKFURTER concur, dissenting.
The issue before us is purely one of statutory construction. For the reasons hereafter stated, we believe that the Court has misconstrued the Resolution of 1938 by treating it as completely repealing the Resolution of 1885 and all other prior holiday pay statutes. Our conclusion is based upon (1) the long-established practice under the Resolution of 1885, as amended, or allowing a full day's gratuity pay to per diem employees on holidays, whether or not those employees also received pay for services actually rendered on those days; (2) the language of the 1938 Resolution; (3) the circumstances which led to the presentation of the 1938 Resolution; and (4) the legislative history of its consideration by Congress.
The Joint Resolution of January 6, 1885, 23 Stat. 516, 5 U.S.C. (1934 ed.) § 86, 5 U.S.C.A. § 86, provided-
'That the employees of the Navy Yard, Government Printing Office, Bureau of Printing and Engraving, and all other per diem employees of the Government on duty at Washington, or elsewhere in the United States, shall be allowed the following holidays, to wit: The first day of January, the twenty-second day of February, the fourth day of July, the twenty-fifth day of December, and such days as may be designated by the President as days for national thanksgiving, and shall receive the same pay as on other days.'
This Resolution was interpreted repeatedly by the Comptroller of the Treasury, the Comptroller General of the United States, and later the Court of Claims, as allowing the designated per diem employees, on the specified holidays, their regular rate of pay as a gratuity, whether or not they worked on those days. Those who worked on such holidays received their scheduled pay for such work in addition to the holiday gratuity. The administrative practice conformed to this interpretation.
This interpretation and the reason for it is made clear in the following quotation from the Comptroller of the Treasury:
'I can not reconcile with any ideas of equity and justice the proposition that Congress ever intended by this or any other statute to allow the employees (and we are now speaking of per diem employees who are paid from a lump sum and not a stated, fixed annual salary) a legal holiday with pay, and place it in the power of yourself or any other person to cause any such employee to work on such day, such employee so working receiving just the same amount of pay for said day as those who are not compelled to work, and no more.
'The laborer is worthy of his hire and should have it when compelled to work on a holiday. The giving him pay for such a day when he does not work is the free gift of Congress, and I will not stultify such gift by taking away from him his pay on a day for which he worked because Congress saw fit to give him pay for legal holidays when he did not work.
'You are therefore authorized to pay to the employees named their wages for work done on Thanksgiving Day in addition to their pay as provided by said act of 1895.' 8 Comp.Dec. 322, 325 (1901).
Thus, until 1938, it was the Government's settled practice to allow gratuity pay to per diem employees on the specified holidays, whether or not the employees performed work on those holidays. It was in that significant context, late in 1937, that the incident occurred which led to the House Joint Resolution of June 29, 1938, 52 Stat. 1246, 5 U.S.C. (1952 ed.) § 86a, 5 U.S.C.A. § 86a.
On December 6, 1937, the President, by Executive Order No. 7763, 2 Fed.Reg. 2685, closed the government offices and excused all government employees from work on Friday, December 24, the day before Christmas. As December 24 was not a holiday specified by the Resolution of 1885, as amended, the Acting Comptroller General by letter of December 20, 1937, advised the Secretary of the Navy that per diem employees of the Navy Department would not be entitled either to gratuity or scheduled pay for that day unless, of course, they earned the latter by working. The difficulty was that the government offices had been closed by an Executive Order whereas the Resolutions limited the allowance of holiday gratuities to a list of statutory holidays. The above-mentioned letter gave unquestioning recognition to the existing statutory authorization of gratuity pay for specified holidays, whether or not additionally compensated labor was performed on those days. It contained no suggestion that such payments were invalid or even unwise, except to point out that the existing law allowed such gratuities even when a holiday occurred on a nonworkday. On this point, the letter commented that 'even when any of such holidays falls on a nonworkday (such as a Saturday), such employees receive pay for the holiday when no work is performed thereon, in addition to the full week's pay otherwise earned, and double compensation for the day if work is performed thereon.' H.R.Rep.No. 2683, 75th Cong., 3d Sess. 5.
With this situation before him, Representative Ramspeck of the House Committee on Civil Service introduced House Joint Resolution 551 providing that the 'employees * * * who were excused from duty on December 24, 1937, by the Executive order of December 6, 1937, shall receive compensation for December 24, 1937, any law or regulation to the contrary notwithstanding.' See 83 Cong.Rec. 9466.
This was referred to the Civil Service Commission which returned it with the suggested substitute which later became the Resolution of 1938. The Commission explained the need for the substitute as follows:
'It is believed that the President had in view that the benefits of the holiday be accorded to all classes of employees to the greatest extent possible. The accounting authorities, however, have held that in the absence of specific legislation the regular employees of the Federal Government whose compensation is fixed at a rate per day, per hour, or on a piece-work basis lose pay for that day. This has resulted in discrimination against these groups of Federal employees.
'The proposed joint legislation provides for the payment of compensation to these employees to cover the single day, December 24, 1937; but there is the broader question involved of securing statutory authority for such payments as a general practice and thus obviate the necessity for special resolutions by Congress. Such a resolution, for example, was required last year to provide payment for these same classes of employees in Washington, D.C., who were excused from duty on January 20, 1937, the date of the inauguration of the President.
'It is believed that general legislation in the following phraseology would give permanent statutory authority for payments under the circumstances indicated:
"Hereafter, whenever regular employees of the Federal Government, whose compensation is fixed at a rate per day, per hour, or on a piece work basis, are relieved or prevented from working solely because of the occurrence of a holiday, such as New Year's Day, Washington's Birthday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day, or any other day declared a holiday by Federal statute or Executive order, or any day on which the Departments and establishments of the Government are closed by Executive order, they shall receive the same pay for such days as for other days on which an ordinary day's work is performed.
"Sec. 2. The joint resolution of January 6, 1885 (U.S.C., title 5, sec. 86), and all other laws inconsistent or in conflict with the provisions of this Act are hereby repealed to the extent of such inconsistency or conflict." H.R.Rep.No.2683, 75th Cong., 3d Sess. 2.
The letters, constituting the Committee Report, thus pointed to the following changes to be accomplished by the new Resolution:
1. Extend the gratuity to include not only statutory holidays but also any holidays and other nonworkdays prescribed by Executive Order.
2. Extend the gratuity to cover all 'regular employees of the Federal Government, whose compensation is fixed at a rate per day, per hour, or on a piece work basis * * *.' Ibid.
The above extensions followed the suggestion of the Civil Service Commission that the new Resolution should answer 'the broader question involved of securing statutory authority for such payments (as that of December 24, 1937) as a general practice and thus obviate the necessity for special resolutions by Congress.' Ibid.
The new Resolution also met the implied criticism relating to the allowance of gratuities for holidays occurring on other than workdays. It did this by expressly limiting gratuity allowances to those days on which the employees 'are relieved or prevented from working solely because of the occurrence of a holiday such as New Year's Day * * *.' (Emphasis supplied.) 52 Stat. 1246. It thus excluded holidays when the relief from work was due in part to the day not being a workday without regard to its designation as a holiday.
The few brief statements made by the sponsor of the Resolution, Representative Ramspeck, at the time of its adoption, confirm the view that the Resolution was merely a corrective measure intended to aid 'the lowest-paid group of employees in the Government service,' rather than a measure designed to abolish substantial benefits enjoyed by per diem laborers under a 50-year-old governmental practice.
It is hardly conceivable that, if either the sponsor of this Resolution or the Committee recommending its adoption had seen in it the deprivation of pay now contended for by the Government, the sponsor or the Committee would not have mentioned that effect in the presentation of the measure. The absence of any such mention is eloquent testimony that the Resolution had no such meaning. It is equally inconceivable that Congress would unanimously reduce the pay of the Government's lowest paid employees sub silentio. Read in its context, and in the light of the explanation, made on the floor, that this Resolution sought 'simply to correct' such a situation as that which occurred on Christmas Eve, and to prevent an unintentional discrimination against per diem employees, it is difficult to read into the Resolution the meaning, contrary to their interests, for which the Government now contends.
The fact that, at the time the 1938 Resolution was enacted, it was the general practice of private industry to pay some type of premium pay for holidays worked emphasizes the unlikelihood of the interpretation contended for by the Government. In Kelly v. United States, 96 F.Supp. 611, 614, 119 Ct.Cl. 197, 209, the Court of Claims, in interpreting the 1938 Resolution, described the circumstances in that year as follows:
'With regard to its per diem and per hour employees, the so-called wage board employees, the Government is in competition with private employers, and attempts to keep its wages and working conditions in step with those in private enterprise. It is completely unthinkable that the owner of a printing shop could, by practice, or by contract, maintain the policy as to holiday pay which the Government here seeks to attribute to Congress. Such an employer might, and many employers did, in 1938, have a policy of not paying for holidays not worked. If the holiday was worked, it was paid for. Some such employers then, and most of them now (1951) have contracts with their employees providing for paid holidays, but in all such contracts there is a provision that if the holiday is in fact worked, it will be paid for again, usually at premium pay, and in addition to the holiday pay. But in no case which we have heard of, or can imagine, could an employer maintain a practice whereby an employee who worked on a holiday received merely the same pay as one who did not work.'
The foregoing changes in the existing law retained its general pattern. They clarified both the classes of per diem employees entitled to a holiday gratuity, and the occasions when that gratuity was to be payable. Nowhere in the Resolution or in its legislative history is there any express statement of the Government's present contention that an employee who comes within the statutory classification of eligibility for the holiday gratuity is deprived of it if he performs some compensated labor for the Government on the holiday in question.
The Government emphasizes the phrase, added in 1938, which states that its regular per diem employees shall receive holiday pay 'whenever (they) are relieved or prevented from working solely because of the occurrence of a holiday * * *.' This is interpreted by the Court of Claims as eliminating gratuity pay for those holidays which occur on nonworkdays. It does this aptly because the occurrence of a holiday on a nonworkday obviously is not the sole cause preventing per diem employment on those days. The Government, however, suggests that this clause also means that if a per diem employee, who becomes entitled to gratuity pay solely because of the occurrence of a holiday on a workday, nevertheless responds to a call to work on that day, he loses the gratuity. Such an interpretation discriminates against the loyal holiday worker.
Moreover, such an interpretation produces the inequitable result that an employee who works on a holiday receives no more pay than an employee who is not required to work on the same holiday.
Concededly, this was not so before 1938. At least until then the 1885 Resolution was recognized as authorizing gratuity pay for holidays, whether or not work was performed on those days. Accordingly, in 1938, it would have been a simple thing to repeal the 1885 Resolution outright if that result were intended. Instead of doing so, the repealing section in the 1938 Resolution expressly limited itself to the inconsistencies and conflicts between, on the one hand, the new Resolution and, on the other, the 1885 Resolution and 'all other laws inconsistent or in conflict with the provisions' of the new Resolution. Such a limited repeal well reflects the above-recited legislative history. It shows the character of the new Resolution to be that of corrective legislation in the interests of the laborers. To be sure, the House Committee Report in its treatment of § 2 of the new Resolution did set forth the text of the 1885 Resolution as that of the Resolution cited in that repealing section. That recital is not sufficient to change the specifically restricted repealing clause into an outright repeal in the face of its express limitation to inconsistencies and conflicts.
The Resolutions of 1885 and 1938 are in pari materia and should be read together. When so read, there is no basis for treating differently the several holidays specified in the Resolutions. No 'double standard' results. The 193, Resolution expands the statutory list of holidays to include various other days that might be designated by Executive Orders. None of the original list are excluded.
Petitioner cites no judicial decision upholding its interpretation. The Court of Claims has twice rejected it and taken the opposite view.
Petitioner cites as authority for its position the brief rulings of the Comptroller General under the 1938 Resolution. Without reviewing the material which has influenced the Court of Claims, those rulings assume, without discussion or judicial support, that the Resolution of 1938 completely repealed the Resolution of 1885. See 18 Comp.Gen. 10, 16, 186, 191 (1938). The treatment of the amendment in the publication of the United States Code is not controlling and cites no judicial authority.
In United States v. Kelly, 342 U.S. 193, 72 S.Ct. 213, 96 L.Ed. 222, we held that per diem employees of the Government Printing Office were entitled to the gratuity pay guaranteed by their collective-bargaining agreement. We also said expressly that the 1938 Resolution 'was silent on the subject of gratuity pay for holidays on which work was performed'. Id., 342 U.S. at page 195, 72 S.Ct. at page 215. The Kelly case thus shows that, at the very least, the gratuity policy of the 1885 Resolution is not prohibited after 1938. Accordingly, it would be consistent with that case to uphold the Court of Claims in the instant case. The collective-bargaining contract in the Kelly case was declaratory of, not contrary to, the policy of the 1885 Resolution.
For the foregoing reasons, the judgment of the Court of Claims should be affirmed.

## Notes

* ↑ In 1887 a fifth holiday was added-Memorial Day. Joint Resolution of February 23, 1887, 24 Stat. 644. For an earlier similar provision, applicable only to employees of the Government Printing Office, see 21 Stat. 304. A subsequent like provision for such employees, the Act of January 12, 1895, 28 Stat. 601, 607, 44 U.S.C.A. § 44, was 'consistently administered as providing for gratuity pay in addition to regular compensation if the employee worked on a holiday.' United States v. Kelly, 342 U.S. 193, 195, 72 S.Ct. 213, 214.
* ↑ See 8 Comp.Dec. 322 (1901); 13 Comp.Dec. 40 (1906); 21 Comp.Dec. 566 (1915); 22 Comp.Dec. 404 (1916); 24 Comp.Dec. 218 (1917); 24 Comp.Dec. 529 (1918); 3 Comp.Gen. 411 (1924); and 15 Comp.Gen. 809 (1936). See also, Kelly v. United States, 96 F.Supp. 611, 612-613, 119 Ct.Cl. 197, 206-207.
* ↑ The letter of December 20, 1937, appears in full in H.R.Rep. No. 2683, 75th Cong., 3d Sess. 3-5, relating to House Joint Resolution 551, later approved June 29, 1938, and now before us.
* ↑ For the official text of the Resolution as approved June 29, 1938, see 52 Stat. 1246, 5 U.S.C.(1952 ed.) § 86a, 5 U.S.C.A. § 86a.
* ↑ The following comprises nearly all that was said about the Resolution on the floor of the House:
* ↑ See also, a study entitled 'Personnel Practices Governing Factory and Office Administration,' prepared in 1937 by F. Beatrice Brower for the National Industrial Conference Board, Inc., New York City. This covered about 450 industrial concerns employing wage earners totaling about 370,000. (P. 2.) Over 60% of such companies paid some type of premium or gratuity to their wage earners for work performed on Sundays or holidays, the extra pay ranging from 25% to 100%, in addition to the regular rate of pay. (Pp. 36-37.)
* ↑ Kelly v. United States (two judges dissenting), 96 F.Supp. 611, 119 Ct.Cl. 197, aff'd on other grounds, United States v. Kelly, 342 U.S. 193, 72 S.Ct. 213, 96 L.Ed. 222; and the instant case, Bergh v. United States (one judge dissenting), 132 F.Supp. 462, 132 Ct.Cl. 564. See also, Adams v. United States, 42 Ct.Cl. 191, 212-213.
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