B-175452, MAY 1, 1972

B-175452, MAY 1, 1972

CIVILIAN EMPLOYEES - CALL-BACK WORK - PROPOSED MINIMUM COMPENSATION - LEGALITY CONCERNING THE LEGALITY OF A PROPOSAL INCIDENT TO COLLECTIVE BARGAINING NEGOTIATIONS AT THE VETERANS ADMINISTRATION HOSPITAL, MUSKOGEE, OKLA., WHICH WOULD PROVIDE A MINIMUM OF FOUR HOURS OVERTIME COMPENSATION FOR EMPLOYEES CALLED BACK TO DUTY. THE PROVISIONS OF 5 U.S.C. 5542(B) PERMIT A 2-HOUR MINIMUM FOR CALL BACK WORK. SINCE SECTION 12 OF EXECUTIVE ORDER 11491, THE AUTHORITY UNDER WHICH THE NEGOTIATIONS ARE BEING CONDUCTED, REQUIRES COMPLIANCE WITH EXISTING LAWS AND REGULATIONS THE PROPOSAL IS NOT LEGALLY ACCEPTABLE.

TO MR. DONALD E. JOHNSON:

THIS REFERS TO YOUR LETTER RECEIVED HERE MARCH 15, 1972, ENCLOSING A LETTER DATED FEBRUARY 29, 1972, FROM MR. JOHN F. GRINER, NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, CONCERNING A PROPOSAL RELATIVE TO CALL-BACK OVERTIME.

YOU SAY THAT DURING COLLECTIVE BARGAINING NEGOTIATIONS AT THE VETERANS ADMINISTRATION HOSPITAL AT MUSKOGEE, OKLAHOMA, UNDER EXECUTIVE ORDER 11491, AS AMENDED, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2250, PROPOSED THAT "EMPLOYEES CALLED BACK SHALL BE PAID A MINIMUM OF 4 HOURS OVERTIME REGARDLESS OF WHETHER THE EMPLOYEE IS REQUIRED TO WORK THE ENTIRE 4 HOURS. IN ADDITION, ANY EMPLOYEE CALLED BACK SHALL BE PROMPTLY EXCUSED UPON COMPLETION OF THE JOB FOR WHICH HE WAS CALLED TO PERFORM." OUR DECISION IS REQUESTED AS TO THE LEGALITY OF SUCH PROPOSAL INSOFAR AS IT WOULD AUTHORIZE 4 HOURS CALL BACK TIME.

WITH RESPECT TO CALL-BACK OVERTIME FOR GENERAL SCHEDULE AND CERTAIN OTHER EMPLOYEES, 5 U.S.C. 5542 PROVIDES THAT:

"(B) FOR THE PURPOSE OF THIS SUBCHAPTER -

"(1) UNSCHEDULED OVERTIME PERFORMED BY AN EMPLOYEE ON A DAY WHEN WORK WAS NOT SCHEDULED FOR HIM, OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT, IS DEEMED AT LEAST 2 HOURS IN DURATION *** "

SENATE REPORT NO. 1992, 83RD CONGRESS, 2ND SESSION, PAGE 9, IN EXPLAINING THE ABOVE SECTION STATES THAT IT "PROVIDES A MINIMUM OF TWO HOURS' PAY AT THE OVERTIME RATE FOR ANY EMPLOYEE CALLED BACK TO PERFORM OVERTIME WORK AFTER HE HAS GONE HOME OR ON ONE OF HIS DAYS OFF DUTY." AT PAGE 17 OF THE REPORT IT WAS EXPLAINED BY THE CIVIL SERVICE COMMISSION THAT THIS "WOULD PROTECT EMPLOYEES FROM BEING CALLED IN FOR ASSIGNMENTS OF SUCH SHORT DURATION THAT PAY FOR ONLY TIME ON DUTY WOULD BE GROSSLY INADEQUATE COMPENSATION FOR THE INCONVENIENCE."

THE PURPOSE OF THE FOREGOING STATUTE AS EXPLAINED IN THE LEGISLATIVE HISTORY WAS TO GUARANTEE AN EMPLOYEE 2 HOURS PAY AT OVERTIME RATES FOR THE INCONVENIENCE OF BEING CALLED BACK TO DUTY. WITHOUT SUCH STATUTORY AUTHORITY PAYMENT COULD BE MADE ONLY FOR THE TIME ON DUTY. SEE 25 COMP. GEN. 151, 155 (1945) FOR THE GENERAL RULE THAT OVERTIME PAYMENT, WITHOUT STATUTORY AUTHORITY OTHERWISE, CAN ONLY BE MADE FOR ACTUAL PERFORMANCE OF DUTY DURING THE PRESCRIBED PERIOD. THE STATUTE THEREFORE MUST BE REGARDED AS PRESCRIBING THE MAXIMUM TIME THAT MAY BE PAID IN THE ABSENCE OF PERFORMANCE OF DUTY BEYOND SUCH PERIOD.

AS STATED IN YOUR LETTER, FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1, SECTION S8-4B, CONTAINS REGULATORY PROVISIONS FOR WAGE BOARD EMPLOYEES PARALLEL TO THE STATUTORY PROVISIONS OF 5 U.S.C. 5542.

THE REGULATORY PROVISIONS MUST ALSO BE VIEWED AS PROVIDING AN EXCEPTION TO THE GENERAL RULE THAT OVERTIME COMPENSATION MAY ONLY BE ALLOWED FOR PERIODS DUTY IS PERFORMED. THE 2 HOURS IS THEREFORE THE MAXIMUM THAT MAY BE PAID IN THE ABSENCE OF WORK BEYOND SUCH PERIOD.

THE COLLECTIVE BARGAINING NEGOTIATIONS UNDER WHICH THE PRESENT QUESTION AROSE ARE CONDUCTED PURSUANT TO THE AUTHORITY OF EXECUTIVE ORDER 11491, AS AMENDED. SECTION 12 OF THAT ORDER SPECIFIES THAT OFFICIALS AND EMPLOYEES ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL.

TO SUMMARIZE, THE PROPOSAL TO PAY A MINIMUM OF 4 HOURS OVERTIME FOR CALL- BACK WORK TO GENERAL SCHEDULE EMPLOYEES AND WAGE BOARD EMPLOYEES IS NOT LEGALLY ACCEPTABLE.