B-145581, JUN. 26, 1964

B-145581, JUN. 26, 1964

TO MR. CHARLES R. MCNEELY, AUTHORIZED CERTIFYING OFFICER, UNITED STATES ATOMIC ENERGY OMMISSION:

BY LETTER OF APRIL 21, 1964, YOU SUBMITTED FOR OUR CONSIDERATION CERTAIN PROPOSALS FOR THE SETTLEMENT OF APPROXIMATELY 375 CLAIMS FOR ADDITIONAL COMPENSATION FOR NIGHT DUTY ("NIGHT DIFFERENTIAL") UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, AS AMENDED, 60 STAT. 218, 68 STAT. 1110, RECEIVED FROM MEMBERS OF YOUR PROTECTIVE FORCE (GUARDS) AS A RESULT OF OUR DECISION OF JULY 6, 1961, B-145581, 41 COMP. GEN. 8. YOU ENCLOSED THREE REPRESENTATIVE VOUCHERS.

YOUR LETTER IS, IN PART, AS FOLLOWS:

"A PAYMENT WAS MADE AS PARTIAL SETTLEMENT OF THE CLAIMS FOR THE PERIOD DECEMBER 16, 1956 TO AUGUST 5, 1961 AND WAS BASED ON CERTIFIED TIME AND ATTENDANCE (T AND A) REPORTS, DAILY TIME SHEETS AND DUTY SCHEDULES. FOR THE PERIOD PRIOR TO DECEMBER 16, 1956, THE ONLY RECORDS AVAILABLE ARE ORIGINAL CERTIFIED T AND A REPORTS FOR THE PERIOD 1954-1956 AND MICROFILM OF THE REPORTS FOR 1952-1953. THERE ARE NO RECORDS FOR 1951. (THERE ARE A FEW PAY PERIODS DURING THE PERIOD 1952 1953 FOR WHICH WE DO NOT HAVE MICROFILM AND, IN ADDITION, THERE IS SOME FILM FOR THIS PERIOD THAT IS NOT READABLE.) T AND A REPORTS OR MICROFILM OF THESE REPORTS ALONE WITHOUT THE SUPPORT OF DAILY TIME SHEETS AND DUTY SCHEDULES DO NOT PROVIDE INFORMATION THAT WOULD PERMIT POSITIVE IDENTIFICATION OF OVERTIME AS "SUBSTITUTE DUTY," "REGULARLY SCHEDULED IN ADVANCE," "CALL BACK Y," "HOLD OVER DUTY," OR OTHERWISE REGULARLY SCHEDULED SO AS TO BE COMPENSABLE FOR N/D. (SEE B-145581, JULY 6, 1961 AND DECEMBER 26, 1962 (42 COMP. GEN. 326).) HOWEVER, CERTAIN SEGMENTS OF OVERTIME REPORTED CAN BE IDENTIFIED AS OCCURRING WITH REGULARITY BY REASON OF THE KNOWN WORK REQUIREMENTS, TIME REPORTING, WORK SCHEDULING PRACTICES, AND OPERATIONAL ROUTINES THAT HAVE REMAINED IN EFFECT OVER THE PERIOD.

"WE PROPOSE SETTLEMENT OF THESE CLAIMS BASED UPON FACTS AS SHOWN BY THE RECORDS AVAILABLE, KNOWLEDGE OF WORK CONDITIONS EXISTING AT THE TIME AND WHICH HAVE CONTINUED TO THE PRESENT, AND TO CERTAIN ASSUMPTIONS RELATING TO WORK SCHEDULING PRACTICES, OPERATIONAL ROUTINES, AND TIME REPORTING. THESE FACTS, ASSUMPTIONS, AND PROPOSALS ARE AS FOLLOWS:

"FACTS, ASSUMPTIONS, AND PROPOSAL FOR PAYMENT

"1. RECORDS AVAILABLE. ONLY T AND A REPORTS ARE AVAILABLE. SOME OF THESE ARE PRINT-OUTS OF MICROFILM. REPORTS FOR SOME PERIODS ARE MISSING. ALL OVERTIME WORKED WAS PROPERLY REPORTED AND PAID, HOWEVER, N/D WAS NOT PAID ON OVERTIME WORKED.

"2. RECORDS NOT AVAILABLE. THERE ARE SOME PAY PERIODS DURING THE CLAIM PERIODS INVOLVED FOR WHICH WE DO NOT HAVE T AND A REPORTS AND SOME MICROFILM IS SO UNCLEAR THAT IT CANNOT BE READ. THIS MAY AMOUNT TO AS MUCH AS 10 PERCENT OF THE CLAIM PERIOD FOR SOME GUARDS.

"ALTHOUGH THERE IS NO WAY OF DETERMINING WHAT DUTY WAS ACTUALLY PERFORMED FOR THESE PERIODS, IT IS KNOWN THAT THERE WAS NO MATERIAL CHANGE IN SCHEDULING PRACTICES AND OPERATIONAL ROUTINES OF THE PROTECTIVE FORCE. AMOUNT HAS BEEN INCLUDED IN THE ATTACHED VOUCHERS FOR THESE PERIODS. FAIRNESS TO THE CLAIMANTS, SOME PAYMENT SHOULD BE MADE. WE SUGGEST CONSIDERATION BE GIVEN TO PAYMENT BASED ON THE AVERAGE NUMBER OF HOURS N/D DETERMINED TO BE DUE EACH CLAIMANT FOR PERIODS FOR WHICH T AND A REPORTS ARE AVAILABLE. ON THIS BASIS, THE CLAIMANTS IN THE ATTACHED VOUCHERS, JONES, SMITH, AND ASHBY, WOULD RECEIVE 5 1/4, 6 1/2, AND 8 1/2 ADDITIONAL HOURS N/D, RESPECTIVELY, FOR EACH PERIOD FOR WHICH RECORDS ARE MISSING.

"3. SHIFT HOURS. IN EACH INSTANCE OF SHIFT DESIGNATION TIME, REPORTING TIME AND ENDING TIME WAS ACTUALLY 15 MINUTES EARLIER THAN SHOWN ON T AND A REPORTS, DUE TO REQUIRED "FORMATION" PRIOR TO BEGINNING OF THE SHIFT AS FOLLOWS:

TABLE

SHIFT TIME

COMPANY AS REPORTED FORMATION ACTUAL SHIFT TIME

"A" 11 P.M. - 7 A.M. 10:45 P.M. 10:45 P.M. - 6:45 A.M.

"B" 7 A.M. - 3 P.M. 6:45 A.M. 6:45 A.M. - 2:45 P.M.

"C" 3 P.M. -11 P.M. 2:45 P.M. 2:45 P.M. -10:45 P.M.

"THE TERM "FORMATION TIME" HAS BEEN USED BECAUSE IT IS A TERM COINED, USED AND UNDERSTOOD BY THE GUARDS. ACTUALLY, NO OVERTIME IS IDENTIFIED OFFICIALLY AS FORMATION TIME--- TIME IN EXCESS OF EIGHT HOURS IS SIMPLY OVERTIME; HOWEVER, IN THE INTEREST OF MAINTAINING AN UNDERSTANDING WITH THE MANY CLAIMANTS AND TO AVOID CONFUSION, WE HAVE IDENTIFIED THE 1/4 HOUR PRECEDING SHIFT DESIGNATION TIME AS FORMATION TIME BECAUSE OF ITS EFFECT UPON PAYMENTS MADE TO "A" SHIFT AND "C" SHIFT GUARDS AS SHOWN BELOW. EFFECTIVE AUGUST 1961,FORMATION TIME WAS CHANGED TO COINCIDE WITH DESIGNATED SHIFT TIMES, I.E., 11 P.M., 7 A.M., AND 3 P.M.

"4. OVERPAYMENT OF N/D TO "C" SHIFT--- UNDERPAYMENT OF N/D TO "A" SHIFT. IN THE REVIEW OF THE T AND A REPORTS, IT WAS FOUND THAT "C" SHIFT MEN HAD BEEN REPORTED AS WORKING 3 P.M. TO 11 P.M. WHEN THEY HAD ACTUALLY REPORTED FOR DUTY AT 2:45 P.M. AND WORKED UNTIL 10:45 P.M. AS A RESULT, N/D) WAS ERRONEOUSLY PAID FOR 5 HOURS (6 P.M. TO 11 P.M.) WHEN ONLY 4 3/4 HOURS WERE ACTUALLY WORKED (6 P.M. TO 10:45 P.M.). SIMILARLY,"A" SHIFT MEN WERE PAID N/D FOR 7 HOURS WORKED (BETWEEN 11 P.M. AND 6 A.M.) WHEN 7 1/4 HOURS WERE ACTUALLY WORKED (10:45 P.M. TO 6 A.M.). IN COMPUTING ADDITIONAL N/D DUE, THESE OVERPAYMENTS AND UNDERPAYMENTS HAVE BEEN ADJUSTED.

"5. STANDARD ALLOWANCE FOR "TRAVEL TIME.' DUTY TIME AT OUTLYING POSTS IS 8 HOURS PLUS A STANDARD ALLOWANCE AUTHORIZED ON AN OVERTIME BASIS TO GUARDS REQUIRED TO TRAVEL TO AND FROM REMOTE POSTS. THESE ALLOWANCES FOR "TRAVEL TIME" RANGE FROM 15 MINUTES TO ONE HOUR. THE APPROPRIATE ALLOWANCE WAS INCLUDED IN THE OVERTIME PREVIOUSLY REPORTED AND PAID, BUT N/D WAS NOT REPORTED AND PAID FOR "TRAVEL TIME.' (SEE B 145581, JULY 6, 1961 AND DECEMBER 26, 1962.) ALL OVERTIME OF ONE HOUR OR LESS IS ASSUMED ATTRIBUTABLE TO TRAVEL TIME AND HAS BEEN SO IDENTIFIED FOR PAYMENT PURPOSES.

"6. OVERTIME ON SAME SHIFT HOURS (SUBSTITUTE DUTY). THE SUPPLEMENTAL T AND A REPORTS SHOW CERTAIN OVERTIME HOURS WITH AN ASTERISK (*) ALONGSIDE INDICATING "SUBSTITUTE" DUTY. THIS WORK OCCURRED WITH VARYING DEGREES OF REGULARITY. THERE IS NO EVIDENCE NOW AVAILABLE TO SUBSTANTIATE WHETHER THE WORK WAS SUBSTITUTE DUTY OR SIMPLY A REQUIREMENT FOR ADDITIONAL GUARDS. IT IS PROPOSED TO INCLUDE THESE HOURS FOR PAYMENT, HOWEVER, NOT FOR THE REASON THAT THEY WERE SUBSTITUTE HOURS OR OCCURRED REGULARLY, BUT RATHER BECAUSE WITH MINOR EXCEPTIONS ALL OF THIS OVERTIME SO IDENTIFIED OCCURRED ON THE EMPLOYEE'S DAY OFF AND WAS PERFORMED DURING THE SHIFT HOURS HE NORMALLY WORKED, I.E., HOURS REGULARLY WORKED BETWEEN 6 P.M. AND 6 A.M. THE BASIS FOR THIS PROPOSAL IS THE ANALYSIS OF THE PERIOD MARCH 9, 1958 THROUGH SEPTEMBER 2, 1961, DURING WHICH PERIOD THERE WERE 15,523 INSTANCES WHEN GUARDS PERFORMED OVERTIME (NOT EXCEEDING 8 HOURS PLUS TRAVEL TIME) ON THEIR REGULARLY SCHEDULED DAYS OFF DURING THE SHIFT HOURS THEY NORMALLY WORKED. DURING THIS SAME PERIOD, THERE WERE ONLY 30 INSTANCES WHEN GUARDS WORKED ON THEIR REGULARLY SCHEDULED DAYS OFF BUT OUTSIDE THE SHIFT HOURS THEY NORMALLY WORKED.

"7. OVERTIME ON DIFFERENT SHIFT HOURS (DOUBLE OVER-DOUBLE UNDER). THE ANALYSIS FOR THE PERIOD MARCH 9, 1958 THROUGH SEPTEMBER 2, 1961 ALSO SHOWS THAT IN 735 INSTANCES GUARDS "DOUBLED OVER" (CONTINUED WORK INTO THE NEXT SHIFT ON AN OVERTIME BASIS) FOR 2,810 OVERTIME HOURS. DURING THE SAME PERIOD, THERE WERE ONLY 103 INSTANCES (15 PERCENT) INVOLVING 499 OVERTIME HOURS WHERE GUARDS ,DOUBLED UNDER" (CAME IN AND WORKED THE SHIFT PRECEDING THEIR REGULAR SHIFT AND CONTINUED THROUGH THEIR REGULAR SHIFT). SINCE IT CANNOT BE DETERMINED FOR THE PERIOD UNDER CONSIDERATION WHETHER THE GUARDS "DOUBLED OVER" OR "DOUBLED UNDER" IT HAS BEEN ASSUMED AND SO CONSIDERED THAT IN ALL INSTANCES GUARDS "DOUBLED OVER.' APPLYING THIS ASSUMPTION CONSISTENTLY WOULD NOT MATERIALLY AFFECT THE TOTAL N/D DUE; HOWEVER, THERE COULD BE SOME SMALL EFFECT UPON THE AMOUNT DUE A PARTICULAR INDIVIDUAL. THIS IS MINIMIZED BY THE FACT THAT GUARDS WERE ROTATED ON THE SHIFTS.

"IT IS PROPOSED TO PAY ADDITIONAL N/D TO THE "C" SHIFT GUARD WHEN HE "DOUBLES OVER" INTO "A" SHIFT AT 10:45 P.M. EVEN THOUGH SUCH OVERTIME MAY OCCUR IRREGULARLY AND INFREQUENTLY ON THE BASIS THAT HE REGULARLY WORKS AT NIGHT ALTHOUGH HE MAY NOT REGULARLY "DOUBLE OVER" INTO "A" SHIFT. PAYMENT IS NOT PROPOSED TO BE MADE TO "B" SHIFT GUARDS WHO "DOUBLE OVER" INTO "C" SHIFT UNLESS SUCH OVERTIME MEETS THE REQUIREMENTS OF REGULARITY, I.E., OCCURS ON TWO SUCCESSIVE DAYS OR AT REGULAR INTERVALS. (B-145581, DECEMBER 26, 1962)"

CONCERNING "1" AND "2," WE ADOPT YOUR SUGGESTION THAT THERE BE ALLOWED AN AMOUNT COVERING PERIODS FOR WHICH T AND A REPORTS ARE UNAVAILABLE, BASED UPON THE STATED AVERAGE METHOD.

WE AGREE THAT THE 15-MINUTE ADJUSTMENTS DISCUSSION IN "4" SHOULD BE MADE.

WE APPROVE THE PROPOSAL IN "5" FOR DEALING WITH "TRAVEL TIME" TO REMOTE POSTS.

IN VIEW OF YOUR REPRESENTATIONS IN "6," WE SHALL NOT INTERPOSE ANY OBJECTION TO YOUR TREATING THE SO-CALLED "SUBSTITUTE DUTY" AS PROPOSED.

LIKEWISE, WE SHALL NOT OBJECT TO THE APPLICATION OF THE "DOUBLE OVER" CONCEPT IN THE MANNER PROPOSED IN "7.'

WE UNDERSTAND THAT NO AMOUNT HAS BEEN INCLUDED FOR THE PORTIONS OF THE CLAIM PERIODS IN 1951 PRIOR TO THE BEGINNING OF THE LAST PAY PERIOD IN THAT YEAR--- THE FIRST PAY PERIOD FOR WHICH T AND A REPORTS NOW ARE AVAILABLE. HOWEVER, CONSISTENT WITH THE VIEW STATED ABOVE IN CONNECTION WITH ,1" AND "2," WE BELIEVE THAT, USING THE AVERAGE METHOD THERE APPROVED, THOSE PERIODS SHOULD ALSO BE INCLUDED.

WE SHOULD STRESS THAT OUR APPROVAL OF YOUR PROPOSALS FOR THE PURPOSE OF SETTLING THIS PARTICULAR CLASS OF CLAIMS SHOULD NOT BE REGARDED AS A BASIS FOR ANY PAYMENTS IN OTHER CASES OF NIGHT DIFFERENTIAL CONTRARY TO RULES HERETOFORE ESTABLISHED BY OUR DECISIONS.

THE THREE REPRESENTATIVE VOUCHERS, WITH ATTACHMENTS, ARE HEREWITH RETURNED.