B-160165, JAN. 6, 1967

B-160165, JAN. 6, 1967

TO MR. BYRON F. BATTENFIELD:

THIS REFERS TO YOUR LETTER OF OCTOBER 28, 1966, AND THAT OF MR. GRINER OF NOVEMBER 18, 1966, REFERENCE 4F/L-2544, CONCERNING YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR OVERTIME SERVICES INCIDENT TO YOUR EMPLOYMENT SINCE APRIL 1955 AS A BORDER PATROL OFFICER, IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE.

THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED SEPTEMBER 7, 1966. THEREAFTER, THE MATTER WAS REVIEWED UPON YOUR REQUEST AND THE SETTLEMENT WAS SUSTAINED BY OUR DECISION OF OCTOBER 10, 1966, B 160165. YOUR PRESENT CONTENTIONS ARE BASED UPON A PROVISION OF 5 U.S.C. 926 (1964 EDITION) AND THE IMPLEMENTING REGULATION ISSUED BY THE CIVIL SERVICE COMMISSION. THE PROVISION READS, IN PERTINENT PART, AS FOLLOWS:

"926. PREMIUM COMPENSATION; IRREGULAR AND UNSCHEDULED TOURS OF DUTY.

"THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, PROVIDE THAT---

"/2) ANY OFFICER OR EMPLOYEE IN A POSITION IN WHICH THE HOURS OF DUTY CANNOT BE CONTROLLED ADMINISTRATIVELY, AND WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED, OVERTIME DUTY AND DUTY AT NIGHT AND ON HOLIDAYS WITH THE OFFICER OR EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY, SHALL RECEIVE PREMIUM COMPENSATION FOR SUCH DUTY ON AN ANNUAL BASIS IN LIEU OF PREMIUM COMPENSATION PROVIDED BY ANY OTHER PROVISIONS OF THIS CHAPTER, EXCEPT FOR REGULARLY SCHEDULED OVERTIME DUTY.

THE "SUBSTANTIAL AMOUNT" OF IRREGULAR, UNSCHEDULED OVERTIME DUTY, ETC., WAS DEFINED IN THE CIVIL SERVICE REGULATIONS AS AN AVERAGE OF AT LEAST SIX HOURS A WEEK OF SUCH OVERTIME DUTY.

YOU SAY THERE IS NOTHING IN THE STATUTE REQUIRING A MINIMUM OF SIX HOURS OVERTIME TO QUALIFY FOR THE (15 PERCENT) PREMIUM PAY AND THAT THE CIVIL SERVICE COMMISSION EXCEEDED ITS AUTHORITY IN SO ESTABLISHING THE SIX-HOUR MINIMUM REQUIREMENT. YOU FURTHER CONTEND THAT SINCE THE SIX-HOUR MINIMUM IS SO REQUIRED IT BECOMES ORDERED OR REGULARLY SCHEDULED OVERTIME AND YOU CLAIM PAYMENT AT REGULAR OVERTIME RATES SUBJECT TO ADJUSTMENT WITH RESPECT TO PREMIUM PAY HERETOFORE PAID TO YOU.

WHILE THE STATUTE DOES NOT SPECIFY A MINIMUM NUMBER OF SUCH DUTY HOURS AS A PREREQUISITE TO PREMIUM PAY IT DOES REQUIRE "SUBSTANTIAL AMOUNTS" THEREOF AND IN THE ABSENCE OF SOME EXPLICIT DEFINITION THE ORDERLY ADMINISTRATION OF THE ACT WOULD HAVE BEEN IMPOSSIBLE. SECTION 605 OF THE STATUTE AUTHORIZES THE CIVIL SERVICE COMMISSION TO ISSUE SUCH REGULATIONS AS MAY BE NECESSARY FOR CARRYING OUT THE OVERTIME PROVISIONS OF THE ACT. FURTHER, WE POINT OUT THAT PAYMENT OF PREMIUM PAY UNDER THE ACT IS CONTINGENT UPON THE APPROVAL OF THE CIVIL SERVICE COMMISSION. THEREFORE, IT WAS INCUMBENT ON THAT AGENCY TO ESTABLISH BY REGULATIONS THE GUIDELINES TO BE FOLLOWED. THE COMMISSION REASONABLY DECIDED THAT AN AVERAGE OF AT LEAST SIX HOURS A WEEK WAS THE DIVIDING LINE. THUS, WE DO NOT AGREE THAT THE COMMISSION EXCEEDED ITS AUTHORITY AS YOU CONTEND.

AS TO YOUR SECOND CONTENTION WE DO NOT CONCUR IN YOUR VIEW THAT THE REQUIREMENT IN THE REGULATIONS FOR AN AVERAGE OF SIX HOURS OF EXTRA DUTY A WEEK CONSTITUTES THE OVERTIME AS REGULARLY SCHEDULED OVERTIME DUTY. THE REGULATIONS SPECIFICALLY RELATE TO A "SUBSTANTIAL AMOUNT OF IRREGULAR OR OCCASIONAL OVERTIME WORK.' THE USUAL DUTIES OF YOUR POSITION RENDER IT IMPOSSIBLE FOR THE AGENCY TO ANTICIPATE THE TIME FOR AND THE DURATION OF THE EXTRA DUTIES TO BE PERFORMED. YOUR OVERTIME DUTY IS IRREGULAR AND UNSCHEDULED WITH YOU, THE EMPLOYEE,"GENERALLY BEING RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, THE CIRCUMSTANCES WHICH REQUIRE HIM (YOU) TO REMAIN ON DUTY.' THUS, YOU ARE NOT REQUIRED TO WORK OVERTIME AT ANY PREDETERMINED TIME NOR FOR ANY FIXED NUMBER OF HOURS BUT ONLY IF AND WHEN THE CIRCUMSTANCES JUSTIFY YOUR REMAINING ON DUTY.

IN VIEW OF THE FOREGOING WE VIEW THE SIX HOURS PER WEEK AVERAGE OF ADDITIONAL SERVICE AS THE MEASURE BY WHICH IT IS DETERMINED THAT EMPLOYEES HAVE MET THE STATUTORY REQUIREMENT OF ,SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED" OVERTIME DUTY AND HAVE THUS BECOME ENTITLED TO THE PREMIUM COMPENSATION PROVIDED THEREFOR. WE SEE NO BASIS FOR THE CONCLUSION THAT THE REQUIREMENT OF AN AVERAGE MINIMUM NUMBER OF HOURS OF EXTRA DUTY A WEEK FOR THE PURPOSE OF QUALIFYING FOR PREMIUM PAY OF ITSELF CONSTITUTES AN ORDER OR A SCHEDULING OF SUCH OVERTIME HOURS AS A WEEKLY REQUIREMENT OF THE EMPLOYEE.

FOR THE REASONS STATED WE HAVE NO ALTERNATIVE BUT TO AGAIN DISALLOW YOUR CLAIM.