B-118097, JULY 2, 1954, 34 COMP. GEN. 3

B-118097, JULY 2, 1954, 34 COMP. GEN. 3

COMPENSATION - NIGHT WORK - REGULAR TOUR OF DUTY REQUIREMENT EXECUTIVE AIRCRAFT PILOTS OF THE CIVIL AERONAUTICS ADMINISTRATION, SUBJECT TO CALL AT ANY TIME DURING THE DAY OR NIGHT, FOR WHOM IT IS IMPRACTICABLE TO PRESCRIBE REGULARLY SCHEDULED DEFINITE HOURS OF DUTY, ALTHOUGH A BASIC WORKWEEK OF 40 HOURS HAS BEEN ESTABLISHED FOR THEM UNDER SECTION 25.211 (B) OF THE FEDERAL EMPLOYEES PAY REGULATIONS FOR OVERTIME COMPENSATION PURPOSES, MAY NOT BE REGARDED AS HAVING BEEN ASSIGNED A REGULARLY SCHEDULED TOUR OF DUTY SO AS TO BE ENTITLED TO NIGHT DIFFERENTIAL UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

ACTING COMPTROLLER GENERAL WEITZEL TO DONALD D. NARCISENFELD, CIVIL AERONAUTICS ADMINISTRATION, JULY 2, 1954:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1954, REQUESTING TO BE ADVISED AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER TRANSMITTED THEREWITH COVERING PAYMENT OF NIGHT DIFFERENTIAL TO TWO EMPLOYEES--- EXECUTIVE PILOTS, GRADE GS-13--- FOR NIGHT DUTY PERFORMED WITHIN THEIR BASIC WORKWEEK.

IT IS STATED IN YOUR LETTER THAT THE DUTIES OF EXECUTIVE PILOTS ATTACHED TO THE WASHINGTON OFFICE INCLUDE THE PILOTING OF AIRCRAFT FOR OFFICIAL TRANSPORTATION OF HIGH-LEVEL OFFICERS OF THE DEPARTMENT OF COMMERCE, CIVIL AERONAUTICS ADMINISTRATION AND OTHER GOVERNMENT AGENCIES AND ESTABLISHMENTS. SUCH FLIGHTS ARE FREQUENT AND ARE CONDUCTED ON THE BASIS OF LIMITED ADVANCE NOTICE, USUALLY OUTSIDE THE HOURS OF DUTY ESTABLISHED FOR DEPARTMENTAL PERSONNEL IN WASHINGTON, D.C. AS A RESULT, THE EMPLOYEES ARE REQUIRED TO REMAIN IN A CONTINUOUS "STANDBY" STATUS AT ALL TIMES EXCEPT WHEN THEY ARE ON EXTENDED LEAVE OF ABSENCE APPROVED IN ADVANCE. IS FURTHER STATED THAT, IN ADDITION TO SUCH DUTIES, THE EXECUTIVE PILOTS HAVE OTHER DUTIES--- INCLUDING FLIGHT TESTING, EVALUATING AIRBORNE AND GROUND FACILITIES, TESTING AND CHECKING CAA PILOT PERSONNEL AUTHORIZED TO FLY GOVERNMENTAL AIRCRAFT--- WHICH FREQUENTLY MUST BE PERFORMED AT VARIOUS HOURS OF THE CALENDAR DAY.

THE RECORD INDICATES AND IT HAS BEEN INFORMALLY REPORTED THAT TO ACQUIRE THE FLEXIBILITY NECESSARY TO UTILIZE EFFICIENTLY THE FOUR PILOTS EMPLOYED IN WASHINGTON, THERE HAS BEEN ADMINISTRATIVELY ESTABLISHED A BASIC WORKWEEK OF 40 HOURS, MONDAY THROUGH SATURDAY. HOWEVER, BECAUSE OF THE NATURE OF THEIR WORK, NO DEFINITE DAILY TOUR OF DUTY IS PRESCRIBED. SUCH ADMINISTRATIVE ACTION WAS PREDICATED UPON THE AUTHORITY CONTAINED IN SECTION 25.211 OF THE FEDERAL EMPLOYEES PAY REGULATIONS, CHAPTER Z1-322, FEDERAL PERSONNEL MANUAL, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

ESTABLISHMENT OF BASIC WORKWEEK AND REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK. (A) HEADS OF DEPARTMENTS SHALL, WITH RESPECT TO EACH GROUP OF FULL-TIME EMPLOYEES TO WHOM THIS SUBPART APPLIES, ESTABLISH BY REGULATION;

(1) A BASIC WORKWEEK OF 40 HOURS IN LENGTH WHICH SHALL NOT EXTEND OVER MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS. EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION, SUCH REGULATION SHALL SPECIFY THE CALENDAR DAYS CONSTITUTING THE BASIC WORKWEEK AND THE NUMBER OF HOURS OF EMPLOYMENT FOR EACH OF SUCH CALENDAR DAYS INCLUDED WITHIN THE BASIC WORKWEEK.

(B) WHENEVER IT IS IMPRACTICABLE TO PRESCRIBE A REGULAR SCHEDULE OF DEFINITE HOURS OF DUTY FOR EACH WORKDAY OF A SCHEDULED ADMINISTRATIVE WORKWEEK, THE FIRST 40 HOURS OF DUTY PERFORMED WITHIN A PERIOD OF NOT MORE THAN 6 DAYS OF THE ADMINISTRATIVE WORKWEEK MAY BE ESTABLISHED AS THE BASIC WORKWEEK * * *.

SECTION 301 OF THE FEDERAL PAY ACT OF 1945, AS AMENDED BY SECTION 10 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, PROVIDES, IN PERTINENT PART, THAT:

ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH, INCLUDING OVERTIME, FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O CLOCK ANTEMERIDIAN, SHALL FOR BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE 10 PERCENTUM IN EXCESS OF HIS RATE OF BASIC COMPENSATION FOR DUTY BETWEEN OTHER HOURS: * * *

SECTION 25.211 (B) DOES NOT ESTABLISH A "REGULARLY SCHEDULED TOUR OF DUTY" FOR NIGHT DIFFERENTIAL PURPOSES AS REQUIRED BY SECTION 301 OF THE 1945 PAY ACT, 59 STAT. 298, AS AMENDED. RATHER, IT MERELY PERMITS THE ESTABLISHMENT OF THE FIRST 40 HOURS AS A "BASIC WORKWEEK" AND THUS FIXES A BASE UPON WHICH TO COMPUTE OVERTIME SERVICE IN THOSE INSTANCES IN WHICH IT IS IMPRACTICABLE TO ESTABLISH REGULARLY SCHEDULED DEFINITE HOURS OF DUTY.

YOUR SUBMISSION ACKNOWLEDGES THAT NO REGULAR HOURS OF DUTY ARE SCHEDULED AND IT IS EVIDENT THAT THE PILOTS ARE NOT REQUIRED TO REMAIN ON DUTY AT THEIR OFFICE OR STATION 24 HOURS A DAY, BUT ARE SUBJECT TO CALL AT ANY TIME DURING THE DAY OR NIGHT. ACCORDINGLY, NO REGULARLY SCHEDULED TOUR OF DUTY HAVING BEEN FIXED ADMINISTRATIVELY, THERE IS NO BASIS FOR THE PAYMENT OF NIGHT DIFFERENTIAL IN THESE CASES.