B-129965, MARCH 19, 1957, 36 COMP. GEN. 657

B-129965, MARCH 19, 1957, 36 COMP. GEN. 657

COMPENSATION - NIGHT WORK - REGULAR TOUR OF DUTY REQUIREMENT REGULARLY SCHEDULED WORK WHICH FALLS BETWEEN 6:00 P.M. AND 6:00 A.M. FOR PAYMENT OF NIGHT DIFFERENTIAL IS WORK WHICH IS SCHEDULED IN ADVANCE BY PROPER ADMINISTRATIVE AUTHORITY AND CONTINUES FOR A MINIMUM OF TWO CONSECUTIVE WEEKS; AND ALTHOUGH NIGHT WORK DOES NOT HAVE TO BE SCHEDULED FOR EACH DAY OF THE WORKWEEK, IT MUST BE SCHEDULED ON AT LEAST ONE DAY OF EACH OF THE TWO OR MORE WORKWEEKS.

TO THE SECRETARY OF THE NAVY, MARCH 19, 1957:

IN CONNECTION WITH THE AUDIT OF PAYROLLS OF CIVILIAN "GRADED" (CLASSIFIED) EMPLOYEES OF THE SAN FRANCISCO NAVAL SHIPYARD, QUESTION HAS BEEN RAISED CONCERNING THE PAYMENT OF NIGHT WORK PREMIUM PAY (HEREINAFTER REFERRED TO AS "NIGHT DIFFERENTIAL") TO EMPLOYEES WHO WORK A ONE-TIME SHIFT WHICH INCLUDES HOURS BETWEEN 6 P.M. AND 6 A.M. THE QUESTION ARISES BECAUSE OF THE TERMS OF SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 206 OF THE ACT OF SEPTEMBER 1, 1954 ( PUBLIC LAW 763), 63 STAT. 1110, 5 U.S.C. 921, DEFINING THE NIGHT WORK FOR WHICH PREMIUM PAY IS PAYABLE AS "REGULARLY SCHEDULED WORK" BETWEEN THE HOURS OF 6 P.M. AND 6 A.M.

IT APPEARS THAT THE PARTICULAR SHOP IN WHICH THE SUBJECT EMPLOYEES WORK HAS NO REGULAR NIGHT TOUR OF DUTY ALTHOUGH THE SHIPYARD AS A WHOLE OPERATES ON A THREE-SHIFT BASIS. ALSO, WE UNDERSTAND THAT THE EMPLOYEES AFFECTED DID NOT HAVE THEIR TOURS OF DUTY RESCHEDULED IN ADVANCE AND THAT THERE IS NOT INVOLVED THE TEMPORARY ASSIGNMENT OF A DAY-SHIFT EMPLOYEE TO FILL A VACANCY ON A REGULAR NIGHT SHIFT. OVERTIME IS INVOLVED IN SOME CASES AND IN OTHERS THE MASTER OF THE SHOP OR OTHER ADMINISTRATIVE OFFICIAL IN CHARGE GAVE THE INDIVIDUALS VERBAL AUTHORIZATION TO WORK OTHER THAN THE NORMAL TOUR OF DUTY.

THE PAYMENTS IN QUESTION APPEAR TO HAVE BEEN MADE LARGELY UPON THE BASIS OF A LETTER DATED OCTOBER 27, 1954, FILE REFERENCE OIR 222: EDM, FROM THE OFFICE OF INDUSTRIAL RELATIONS TO THE COMMANDER, MARE ISLAND NAVAL SHIPYARD, ADVISING THAT "REGULARLY SCHEDULED" MEANS "SCHEDULED BY PROPER ADMINISTRATIVE AUTHORITY," AND THAT NIGHT DIFFERENTIAL MIGHT BE PAID FOR WORK SHIFTS ASSIGNED ON AN IRREGULAR OR ONE-TIME BASIS IF SUCH SHIFTS ARE ESTABLISHED OR SCHEDULED BY PROPER ADMINISTRATIVE AUTHORITY.

WE ARE INFORMED THAT THE SHIPYARD OFFICIALS CONTEND THAT THE PAYMENTS ARE AUTHORIZED BECAUSE OTHER SHOPS IN THE SHIPYARD OPERATE ON REGULAR NIGHT SHIFTS, EVEN THOUGH, AS STATED ABOVE, THE SHOP IN WHICH THESE PARTICULAR EMPLOYEES WORK OPERATES ON A DAY SHIFT, ONLY. WE KNOW OF NO LEGAL BASIS FOR SUCH CONTENTION AND WE HAVE DIFFICULTY IN ACCEPTING IT. THE REAL QUESTION CONCERNS THE MEANING OF THE PHRASE "REGULARLY SCHEDULED WORK.'

OF COURSE, THE WORD "REGULAR" HAS SEVERAL DIFFERENT MEANINGS. ACCORDING TO FUNK AND WAGNALLS NEW STANDARD DICTIONARY, IT MAY MEAN ACTING ACCORDING TO RULE; FOLLOWING A UNIFORM COURSE; UNVARYING IN PRACTICE; RECURRING WITHOUT FAIL; ETC. OR IT MAY MEAN CONSTITUTED, APPOINTED, OR CONDUCTED IN A PROPER MANNER; CONFORMABLE TO LAW OR CUSTOM; DULY AUTHORIZED. A CAREFUL CONSIDERATION OF THE MATTER LEADS US TO THE CONCLUSION THAT THE CONNOTATION OF THE FIRST SERIES OF DEFINITIONS JUST GIVEN MORE NEARLY EXPRESSES THE LEGISLATIVE INTENT. THAT IS TO SAY, WE ARE OF THE OPINION THAT ,REGULARLY SCHEDULED WORK" IS WORK WHICH IS SCHEDULED ON A RECURRING BASIS.

FOR ONE THING, THE MEANING APPLIED BY THE OFFICE OF INDUSTRIAL RELATIONS IN ITS LETTER OF OCTOBER 27, 1954, IS SUBSTANTIALLY SYNONYMOUS WITH THE WORDS "OFFICIALLY ORDERED" AS USED WITH RESPECT TO OVERTIME WORK IN SECTION 201 OF THE 1945 PAY ACT, AS AMENDED BY PUBLIC LAW 763, 5 U.S.C. 911. IN VIEW OF THE JUXTAPOSITION OF SECTIONS 201 AND 301, IT DOES NOT SEEM REASONABLE THAT THE DRAFTERS WOULD CHOOSE ENTIRELY DIFFERENT WORDS ("REGULARLY SCHEDULED") TO EXPRESS IN SECTION 301 SUBSTANTIALLY THE SAME THOUGHT AS HAD JUST BEEN EXPRESSED IN SECTION 201 WITH THE WORDS "OFFICIALLY ORDERED.' RATHER, WE BELIEVE THAT DIFFERENT WORDS WERE PURPOSELY CHOSEN TO EXPRESS A DIFFERENT MEANING. ALSO OF SIGNIFICANCE IN THIS CONNECTION IS THE USE OF THE WORDS "IRREGULAR OR OCCASIONAL OVERTIME WORK" IN SECTION 202 (A) OF THE ACT, AS AMENDED, 5 U.S.C. 912 (A), IN CONTRAST TO THE WORDS "REGULARLY SCHEDULED" IN SECTION 301.

OTHER EXPRESSIONS IN TITLE II OF PUBLIC LAW 763 IN WHICH THE WORD "REGULARLY" IS USED SUPPORT OUR VIEW. FOR EXAMPLE, IN SECTION 204 OF THE 1945 PAY ACT, AS ADDED BY SECTION 205 (B) OF PUBLIC LAW 763, 5 U.S.C. 912 (B), THE PHRASE "REGULARLY SCHEDULED OVERTIME" UNMISTAKENLY CARRIES THE CONNOTATION WHICH WE ATTRIBUTE TO "REGULARLY" IN SECTION 301. THE SAME MAY BE SAID OF THE PROVISIONS IN SECTION 401, AS ADDED BY SECTION 208 (A) OF PUBLIC LAW 763, 5 U.S.C. 926 (A), FOR PAYMENT OF PREMIUM COMPENSATION TO EMPLOYEES WHO ARE REQUIRED "REGULARLY TO REMAIN" AT OR WITHIN THE CONFINES OF THEIR STATIONS. IN CONNECTION WITH THE LATTER WE NOTE THAT THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 C.F.R. 25.253 (A) (2), HAVE CONSTRUED THE "REGULARLY" REQUIREMENT AS MEANING THAT THE HOURS OF DUTY MUST BE ESTABLISHED ON A REGULARLY RECURRING BASIS FOR A SUBSTANTIAL PERIOD OF TIME,"GENERALLY AT LEAST A FEW MONTHS.'

FURTHER SUPPORT FOR OUR VIEW FOLLOWS FROM AN ANALYSIS OF THE PHRASE "REGULARLY SCHEDULED WORK" ITSELF. STANDING ALONE, THE WORD "SCHEDULED" AS HERE USED CARRIES WITH IT THE IMPORT OF "DULY AUTHORIZED," SINCE FEDERAL EMPLOYEES NORMALLY WORK SCHEDULES ESTABLISHED BY PROPER AUTHORITY. SEE SECTION 604 (A) OF THE 1945 PAY ACT, AS AMENDED BY SECTION 210 (B) OF PUBLIC LAW 763, 5 U.S.C. 944. THEREFORE, THE WORD "REGULARLY" WOULD BE SUPERFLUOUS IF ONLY "DULY AUTHORIZED" WERE MEANT. THERE IS A PRESUMPTION AGAINST SUPERFLUITY IN THE CONSTRUCTION OF STATUTES. SEE 20 COMP. GEN. 81, 84, AND 25 ID. 715 (INVOLVING THE TERM "REGULAR EMPLOYEE"). ALSO, WE MAY SAY THAT THE PROVISIONS FOR CONTINUANCE OF NIGHT DIFFERENTIAL DURING ABSENCES DUE TO HOLIDAYS AND LEAVE WITH PAY OF LESS THAN 8 HOURS OBVIOUSLY WERE INSERTED IN THE LIGHT OF THE CONTEMPLATED UNIFORMITY OF RECURRENCE OF NIGHT WORK FOR WHICH PREMIUM PAY IS PAYABLE. SENATE REPORT NO. 1190, 84TH CONGRESS, AT PAGE 15 (STATEMENT OF THE CIVIL SERVICE COMMISSION).

ASIDE FROM THE LEGISLATIVE INTENT AS DEDUCED FROM THE STATUTE ITSELF, FURTHER EXPRESSIONS OF INTENT ARE FOUND IN THE FOLLOWING CITED LEGISLATIVE REPORTS ON THE SUBJECT OF NIGHT DIFFERENTIAL:

FROM THE SENATE REPORT ( NO. 265) ON S.807, 79TH CONGRESS, AT PAGE 5-- * * * WORK PERFORMED AS PART OF AN EMPLOYEE'S REGULAR SCHEDULE BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. FROM THE HOUSE REPORT ( NO. 726) ON H.R. 3393, 79TH CONGRESS, AT PAGE 13--- THERE ARE RELATIVELY FEW EMPLOYEES SUBJECT TO SECTION 301 * * * WHO WORK ON REGULAR NIGHT SHIFTS. FROM THE HOUSE REPORT ( NO. 1834) ON H.R. 5939, 79TH CONGRESS, AT PAGE 14---

A NIGHT DIFFERENTIAL IS EXTRA PAY FOR WORKING REGULARLY BETWEEN ABNORMAL CLOCK HOURS. ( ITALICS SUPPLIED IN EACH INSTANCE.) BOTH THE SENATE REPORT ( NO. 1190) AND THE HOUSE REPORT ( NO. 2454) ON S. 2665, THE PERTINENT PORTIONS OF WHICH WERE ENACTED AS PUBLIC LAW 763, USE THE WORD ,REGULAR" IN RELATION TO NIGHT DIFFERENTIAL IN A SENSE UNMISTAKABLY INCONSISTENT WITH A CONNOTATION OF "DULY AUTHORIZED.'

THE FOLLOWING STATEMENT FROM A REPORT OF THE CIVIL SERVICE COMMISSION WHICH IS PRINTED ON PAGE 24 OF THE SENATE HEARINGS ON S.354, 82ND CONGRESS, SUMMARIZES THE MATTER:

TO MAKE NIGHT DIFFERENTIAL PAYABLE FOR PERIODS OF IRREGULAR, UNSCHEDULED OVERTIME WORK BETWEEN 6 P.M. AND 6 A.M. (AS IT NOW IS FOR REGULARLY SCHEDULED NIGHT WORK, OVERTIME OR NOT) WOULD BE INCONSISTENT WITH THE BASIS FOR NIGHT-DIFFERENTIAL PAY. NIGHT DIFFERENTIAL IS EXTRA PAY FOR WORKING ABNORMAL HOURS REGULARLY. OCCASIONAL OVERTIME WORK AT NIGHT IS NOT GENERALLY MORE ONEROUS THAN SIMILAR OVERTIME WORK IN THE DAYTIME ON A SATURDAY, OR OTHER NON-WORKDAY.

NEITHER THE STATUTE NOR THE CIVIL SERVICE REGULATIONS PRESCRIBE THE MINIMUM PERIOD FOR WHICH NIGHT WORK MUST BE SCHEDULED IN ORDER TO BE "REGULARLY SCHEDULED.' THAT BEING SO, IT BECOMES NECESSARY FOR US TO PRESCRIBE SUCH MINIMUM PERIOD BY DECISION. IN THAT REGARD, WE NOTE THAT IN NCPI 85.1-4C IT IS STATED: "AS A GENERAL RULE, THE ASSIGNMENT IS "REGULAR" WHEN IT IS EXPECTED TO CONTINUE, OR DOES CONTINUE FOR MORE THAN TWO CONSECUTIVE ADMINISTRATIVE WORKWEEKS (PAY WEEKS); " AND AGAIN IN NCPI 85.2-2B, IT IS STATED: "WHEN WORK IS REGULARLY REQUIRED OUTSIDE THE SCHEDULED WORKWEEK, THE WORKWEEK SHOULD BE RESCHEDULED TO CONFORM TO THE NEED. THE WORK IS "REGULARLY REQUIRED" IF IT INVOLVES A PERIOD OF MORE THAN TWO CONSECUTIVE ADMINISTRATIVE WORKWEEKS.' WHILE WE FEEL THAT THOSE INTERPRETATIONS OF THE TERMS "REGULAR" AND "REGULARLY" BY THE DEPARTMENT OF THE NAVY ARE REASONABLE, NEVERTHELESS, IN THE ABSENCE OF A REGULATION BY THE CIVIL SERVICE COMMISSION COVERING THE POINT AND IN THE INTEREST OF UNIFORMITY (SEE SECTION 25.232 (B), FEDERAL EMPLOYEES PAY REGULATIONS), WE ARE INCLINED TO THE VIEW THAT THE MINIMUM PERIOD TO ESTABLISH THE FACT THAT WORK IS "REGULARLY SCHEDULED" SHOULD BE "NOT LESS THAN TWO ADMINISTRATIVE WORKWEEKS.'

ACCORDINGLY, WE HOLD THAT "REGULARLY SCHEDULED WORK" WHICH FALLS BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. FOR PURPOSES OF NIGHT DIFFERENTIAL PAYMENT IS WORK WHICH IS SCHEDULED IN ADVANCE BY PROPER ADMINISTRATIVE AUTHORITY-- - IN ACCORDANCE WITH SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, SUPRA, AND REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 C.F.R. 25.211 AND 25.212--- TO CONTINUE FOR AT LEAST TWO CONSECUTIVE WORKWEEKS. NIGHT WORK NEED NOT BE SCHEDULED FOR EACH DAY OF THE WORKWEEK (25 COMP. GEN. 151, 158) BUT IT MUST BE SCHEDULED ON AT LEAST ONE DAY OF EACH OF THE TWO OR MORE WORKWEEKS.

IN VIEW OF WHAT IS HELD HEREIN, THE FOLLOWING STATEMENT IN NCPI 85.5 1C IS TOO BROADLY WORDED:

* * * WORK DOES NOT HAVE TO BE RECURRING TO BE REGULARLY SCHEDULED. FOR EXAMPLE, IF ONE-TIME TESTS ARE SCHEDULED TO BE MADE DURING HOURS WITHIN OR OUTSIDE OF THE NORMAL WORKWEEK, THE WORK IS REGULARLY SCHEDULED AND THE WORKWEEK OF THE EMPLOYEE INVOLVED IN THE TEST SHOULD BE RESCHEDULED TO MEET THE WORK REQUIREMENT, AS PROVIDED IN NCPI 85.2 2C.

NOTHING SAID HEREIN IS TO BE TAKEN AS AFFECTING THE RULE THAT AN EMPLOYEE TEMPORARILY ASSIGNED TO WORK ON ANOTHER EMPLOYEE'S REGULARLY SCHEDULED WORK AT NIGHT IS ENTITLED TO THE NIGHT DIFFERENTIAL. 25 COMP. GEN. 102, 110; 5 C.F.R. 25.232 (D).

WE SHALL NOT STATE FORMAL EXCEPTIONS TO PAYMENTS HERETOFORE MADE IN CONTRAVENTION OF THE RULES STATED HEREIN. HOWEVER, PROMPT ACTION SHOULD BE TAKEN TO PREVENT FURTHER ERRONEOUS PAYMENTS OF THE NATURE HERE INVOLVED. WE SHOULD APPRECIATE YOUR ADVISING US OF THE ACTION TAKEN.