B-159256, OCT. 11, 1966

B-159256, OCT. 11, 1966

TO. MR. LOUIS J. LEMOS:

WE REFER TO YOUR LETTER OF SEPTEMBER 14, 1966, IN WHICH YOU REQUEST REVIEW OF OUR DECISION OF JULY 29, 1966, B-159256, TO MR. W. F. OWEN, JR., AUTHORIZED CERTIFYING OFFICER, BUREAU OF MINES, WHO HAD ASKED FOR A DECISION WHETHER HE MIGHT LAWFULLY CERTIFY FOR PAYMENT A VOUCHER COVERING YOUR CLAIM FOR OVERTIME COMPENSATION.

THE VOUCHER WAS SUFFICIENTLY DOCUMENTED TO SHOW THAT YOU PERFORMED OVERTIME DUTY WHILE ABOARD A BUREAU OF MINES RESEARCH VESSEL DURING THE PERIOD MAY 10 THROUGH MAY 28, 1965. HOWEVER, THERE WAS NO EVIDENCE THAT ANY AUTHORIZED OFFICER OF THE BUREAU OF MINES HAD ORDERED YOUR OVERTIME WORK OR THEREAFTER HAD APPROVED IT.

AS APPARENTLY YOU ARE AWARE, SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911, IN EFFECT AT THE TIME, PROVIDED IN PART:

"ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK * * * SHALL BE CONSIDERED TO BE OVERTIME WORK * * *.'

CIVIL SERVICE COMMISSION REGULATIONS ISSUED PURSUANT TO THE ACT PRESCRIBE THAT THE OFFICIAL ORDER OR APPROVAL BE IN WRITING AND SUCH REGULATIONS HAVE BEEN INCORPORATED INTO THE REGULATIONS OF THE BUREAU OF MINES. THAT REGARD AND IN RESPONSE TO YOUR QUESTION THE COMMISSION'S REGULATIONS BEING STATUTORY REGULATIONS TAKE PRECEDENCE OVER THE BUREAU'S REGULATIONS.

BECAUSE YOUR CASE AS SUBMITTED BY MR. OWEN WAS SILENT CONCERNING THE AUTHORITY UNDER WHICH YOU PERFORMED OVERTIME WORK, WE REFERRED THE CASE TO THE BUREAU OF MINES, WASHINGTON, D.C., FOR FURTHER DEVELOPMENT OF THAT POINT AND A SUPPLEMENTAL REPORT TO US.

BY HIS LETTER OF JULY 14, 1966, THE ASSISTANT DIRECTOR (ADMINISTRATION) OF THE BUREAU INFORMED US THAT AT THE TIME OF YOUR CRUISE, MR. J. LESLIE GOODIER, YOUR IMMEDIATE SUPERVISOR, HAD NOT BEEN DELEGATED AUTHORITY TO ORDER OR APPROVE OVERTIME WORK AND THAT NO AUTHORIZED OFFICER IN THE WESTERN ADMINISTRATIVE OFFICE OF THE BUREAU HAD DONE SO.

AS EVIDENCED BY OUR DECISION OF JULY 29, 1966, TO MR. OWEN, A COPY OF WHICH IS ENCLOSED FOR YOUR INFORMATION, WE ALSO CONSIDERED YOUR CLAIM UNDER SECTION 550.151 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION. THAT SECTION OF THE COMMISSION'S REGULATIONS STEMS FROM AND IS SIMILAR IN WORDING TO SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 208 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1111, 5 U.S.C. 926 (1964 ED.) IN PART, AS FOLLOWS:

"THE HEAD OF ANY DEPARTMENT * * * 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. PREMIUM COMPENSATION UNDER THIS PARAGRAPH SHALL BE DETERMINED AS AN APPROPRIATE PERCENTAGE (NOT IN EXCESS OF 15 PERCENTUM) OF SUCH PART OF THE RATE OF BASIC COMPENSATION FOR ANY SUCH POSITION AS DOES NOT EXCEED THE MINIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS-9 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, BY TAKING INTO CONSIDERATION THE FREQUENCY AND DURATION OF NIGHT, HOLIDAY, AND UNSCHEDULED OVERTIME DUTY REQUIRED IN SUCH POSITION.'

WE ARE INFORMED BY THE BUREAU THAT NO AUTHORITY FOR THE ESTABLISHMENT OF THE POSITION OF MECHANICAL ENGINEERING TECHNICIAN AS ONE IN WHICH THE HOURS OF DUTY CANNOT BE CONTROLLED ADMINISTRATIVELY WAS EVER SOUGHT FROM THE CIVIL SERVICE COMMISSION. CONSEQUENTLY, YOUR CLAIM FOR OVERTIME COMPENSATION COULD NOT PROPERLY BE BASED UPON THAT PROVISION OF LAW.

IN RESPONSE TO YOUR INQUIRY WHETHER YOU COULD BE COMPENSATED FOR YOUR SERVICES AS COOK, WE HAVE NOTHING OF RECORD TO SHOW THAT YOU WERE OFFICIALLY APPOINTED TO THAT POSITION, A CONDITION PRECEDENT TO ENTITLEMENT TO SALARY THEREFOR. ASIDE FROM THE QUESTION OF OVERTIME, OFFICERS AND EMPLOYEES OF THE UNITED STATES MAY BE DETAILED TO PERFORM FOR BRIEF PERIODS DUTIES OTHER THAN THOSE CONTAINED IN THEIR OFFICIAL POSITION DESCRIPTIONS; HOWEVER, FOR SUCH DUTIES THEY CONTINUE TO RECEIVE THE SALARY OF THEIR REGULAR POSITION WHICH IN YOUR CASE WAS THAT OF ENGINEERING TECHNICIAN.

IN THE LIGHT OF THE FOREGOING AND OF THE ENCLOSED COPY OF OUR DECISION OF JULY 29, 1966, TO MR. OWEN, THERE IS NO LAWFUL BASIS UPON WHICH WE MIGHT DIRECT PAYMENT TO YOU OF OVERTIME COMPENSATION OR SALARY FOR YOUR SERVICES ON THE CRUISE AS COOK.