B-119855, NOVEMBER 5, 1954, 34 COMP. GEN. 216

B-119855: Nov 5, 1954

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1954: REFERENCE IS MADE TO LETTER OF APRIL 26. PERTAINING TO EMPLOYEES WHO ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949. WHOSE WAGES ARE DETERMINED UPON AN HOURLY BASIS IN ACCORDANCE WITH PREVAILING PRACTICES IN THE LOCALITY. IS AS FOLLOWS: THIS PLANT IS DESIGNED FOR REMOTE CONTROL FROM THE ADJACENT SEMINOLE PLANT. IS TO BE UNATTENDED FOR A MAJORITY OF THE TIME. THERE IS A CERTAIN AMOUNT OF WORK AT THESE PLANTS SUCH AS CLEANING. WHICH WILL REQUIRE THE PRESENCE EACH DAY OF AN EMPLOYEE AT THE PLANT FOR APPROXIMATELY FOUR TO FIVE HOURS. DURING THE PERIODS WHEN THE PLANT IS UNATTENDED. IT WILL BE NECESSARY THAT AN EMPLOYEE BE AVAILABLE IN CLOSE PROXIMITY AT ALL TIMES TO ANSWER EMERGENCY CALLS AT THE PLANT IN THE EVENT OF FAILURE OF THE CONTROL EQUIPMENT OR OPERATION OF THE AUTOMATIC SHUTDOWN PROTECTIVE DEVICES.

B-119855, NOVEMBER 5, 1954, 34 COMP. GEN. 216

COMPENSATION - WAGE BOARD EMPLOYEES - ON-CALL OR STAND-BY TIME AT HOME - TOURS OF DUTY A WEEKLY TOUR OF DUTY CONSISTING OF 20 HOURS ACTUAL WORK AND 70 HOURS STAND-BY TIME AT HOME MAY BE ESTABLISHED FOR WAGE BOARD EMPLOYEES AT A GOVERNMENT ELECTRIC POWER/PLANT AND THE COMPENSATION FOR WORK AND STAND-BY TIME MAY BE FIXED IN ACCORDANCE WITH PREVAILING INDUSTRIAL PRACTICES SO AS TO ENTITLE THE EMPLOYEES TO THE EQUIVALENT OF 40 HOURS PAY FOR SUCH A WORKWEEK. WHILE A PERIOD OF STAND-BY TIME DURING WHICH A WAGE BOARD EMPLOYEE AT A REMOTE GOVERNMENT POWER/PLANT REMAINS ON CALL AT HOME MAY NOT BE CONSIDERED "LABOR" WITHIN THE MEANING OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, FOR PAYMENT OF OVERTIME COMPENSATION, AND DOES NOT CONSTITUTE WORK" WITHIN THE MEANING OF THE EIGHT-HOUR LAW OF AUGUST 1, 1892, PAYMENT OF COMPENSATION MAY BE MADE FOR SUCH STAND-BY TIME ON A PRO RATA BASIS OF REGULAR COMPENSATION.

ACTING COMPTROLLER GENERAL MORROW TO THE SECRETARY OF THE INTERIOR, NOVEMBER 5, 1954:

REFERENCE IS MADE TO LETTER OF APRIL 26, 1954, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION UPON THE FOUR QUESTIONS HEREINAFTER SET FORTH, PERTAINING TO EMPLOYEES WHO ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, AS AMENDED, AND WHOSE WAGES ARE DETERMINED UPON AN HOURLY BASIS IN ACCORDANCE WITH PREVAILING PRACTICES IN THE LOCALITY, OR BY ACTUAL NEGOTIATION WITH EMPLOYEE REPRESENTATIVES UNDER FORMAL WRITTEN AGREEMENTS.

THE LETTER OF APRIL 26, IN PART, IS AS FOLLOWS:

THIS PLANT IS DESIGNED FOR REMOTE CONTROL FROM THE ADJACENT SEMINOLE PLANT, AND IS TO BE UNATTENDED FOR A MAJORITY OF THE TIME. THERE IS A CERTAIN AMOUNT OF WORK AT THESE PLANTS SUCH AS CLEANING, GREASING AND OILING MACHINERY, AND MINOR MAINTENANCE, WHICH WILL REQUIRE THE PRESENCE EACH DAY OF AN EMPLOYEE AT THE PLANT FOR APPROXIMATELY FOUR TO FIVE HOURS. HOWEVER, DURING THE PERIODS WHEN THE PLANT IS UNATTENDED, IT WILL BE NECESSARY THAT AN EMPLOYEE BE AVAILABLE IN CLOSE PROXIMITY AT ALL TIMES TO ANSWER EMERGENCY CALLS AT THE PLANT IN THE EVENT OF FAILURE OF THE CONTROL EQUIPMENT OR OPERATION OF THE AUTOMATIC SHUTDOWN PROTECTIVE DEVICES. IT IS IMPERATIVE THAT THE PLANT BE PLACED BACK, IN OPERATION WITH AS LITTLE DELAY AS POSSIBLE WHENEVER TROUBLE DEVELOPS. WE PLAN TO HAVE TWO POWER/PLANT OPERATORS STATIONED AT THIS PLANT WHO, BETWEEN THEM, WILL PERFORM ALL THE NECESSARY WORK AND PROVIDE "ON-CALL" SERVICE ON A 24 HOUR DAY, 7 DAYS A WEEK BASIS. DURING THE PERIOD THESE OPERATORS ARE "ON- CALL" THEY WILL NOT BE REQUIRED TO REMAIN AT THE PLANT, BUT WILL BE REQUIRED TO REMAIN AT THEIR HOMES OR WITHIN HEARING DISTANCE OF THE ALARM SYSTEM AT THE POWER/PLANT AT ALL TIMES IN THE EVENT AN EMERGENCY OCCURS. WE BELIEVE THE EMPLOYEES ARE ENTITLE TO COMPENSATION FOR SUCH "ON-CALL" DUTY.

THESE IS NOT SUFFICIENT WORK, NOR AN OPERATING REQUIREMENT, FOR THE PRESENCE OF THESE EMPLOYEES AT THE POWER/PLANT FOR AN ACTUAL FORTY HOURS WORK PER WEEK. THEREFORE, WE PROPOSE TO ESTABLISH TOURS OF DUTY FOR THE TWO UNGRADED ATTENDANTS AT THE REMOTELY CONTROLLED KORTES POWER/PLANT SO EACH WOULD PERFORM APPROXIMATELY 20 HOURS ACTUAL WORK PER WEEK AND BE "ON- CALL" FOR APPROXIMATELY 70 HOURS PER WEEK. IF SUCH A TOUR OF DUTY IS PERMISSIBLE, WE PLAN TO FIX COMPENSATION FOR THE ,ON-CALL" DUTY SO THAT THE COMBINATION OF ACTUAL WORK AND "ON CALL" TIME WOULD NORMALLY ENTITLE THE EMPLOYEE TO 40 HOURS PAY PER WEEK. OVERTIME PAY WOULD APPLY FOR WORK PERFORMED BY AN EMPLOYEE DURING NORMAL OFF-DUTY PERIODS AND FOR ACTUAL WORK PERFORMED, DURING WORK-TIME DUTY OR ON-CALL TIME DUTY, WHICH EXCEEDS 40 HOURS PER WEEK.

THE SPECIFIC QUESTIONS PRESENTED ARE AS FOLLOWS:

1. DOES "ON-CALL" OR "STAND-BY" SERVICE AS PROPOSED HEREIN CONSTITUTE "WORK" WITHIN THE COVERAGE OF THE EIGHT-HOUR LAW OF AUGUST 1, 1892 (27 STAT. 340/?

2. DOES "ON-CALL" OR "STAND-BY" SERVICE AS PROPOSED HEREIN CONSTITUTE "LABOR" WITHIN THE COVERAGE OF SECTION 23, ACT OF MARCH 28, 1934 (48 STAT. 522/?

3. UNDER THE CURRENT GENERAL POLICY THROUGHOUT THE FEDERAL SERVICE OF ESTABLISHING 40-HOUR PER WEEK TOURS OF DUTY, WHAT LATITUDE DOES THIS DEPARTMENT HAVE IN PRESCRIBING REGULAR TOURS OF DUTY IN EXCESS OF 40 HOURS PER WEEK TO COVER OPERATING REQUIREMENTS SUCH AS ARE DESCRIBED IN THE PRECEDING PARAGRAPHS?

4. IF THE PROPOSED ASSIGNMENT OF AN INDIVIDUAL EMPLOYEE TO A 20 HOUR WORK AND 70-HOUR STAND-BY TOUR PER WEEK IS PERMISSIBLE, IS IT WITHIN THE DEPARTMENT'S DISCRETION TO ADJUST THE COMPENSATION OF SUCH EMPLOYEE SO THAT TOTAL COMPENSATION FOR WORK TIME PLUS STAND-BY TIME WOULD BE EQUAL TO WHAT HE WOULD HAVE RECEIVED ON A 5-DAY, 8-HOUR ACTUAL WORK WEEK?

IN LETTER OF AUGUST 10, 1954, THE ADMINISTRATIVE ASSISTANT SECRETARY FURNISHED ADDITIONAL INFORMATION TO SUBSTANTIATE THE FACT THAT IT IS THE PRACTICE IN SOME PHASES OF PRIVATE INDUSTRY FOR LABOR AND MANAGEMENT TO AGREE UPON THE AMOUNT OF COMPENSATION TO BE PAID FOR A COMBINATION OF ,STAND-BY" TIME AND ACTUAL WORK, THE COMPENSATION FOR THE "STAND-BY" SERVICE USUALLY BEING A PROPORTION OF THE STRAIGHT TIME COMPENSATION FOR REGULAR WORK. ALSO, AFTER QUOTING VARIOUS EXAMPLES, THE LETTER STATES THAT IT HAS BEEN DETERMINED THAT IT ALREADY IS THE PREVAILING PRACTICE FOR LABOR UNIONS AND THE ELECTRIC POWER INDUSTRY TO ENTER INTO AGREEMENTS OF THAT NATURE IN AREAS WHERE THE DEPARTMENT NOW PROPOSES TO EFFECT SIMILAR ARRANGEMENTS AT ITS POWER/PLANTS. FURTHER, INFORMATION HAS BEEN FURNISHED TO INDICATE THAT THE ADOPTION OF THE PROPOSAL OF THE DEPARTMENT FOR SEMI- AUTOMATIC OPERATION OF POWER/PLANTS WOULD RESULT IN SAVINGS OF OVER ONE- HALF OF THE COST OF THE MANUAL OPERATION THEREOF.

UNDER THE PROPOSED EMPLOYMENT ARRANGEMENT WHEREBY THE EMPLOYEE PERFORMS ACTUAL SERVICE OF APPROXIMATELY 30 HOURS A WEEK AND IS IN A STAND-BY STATUS FOR AN ADDITIONAL 70 HOURS--- DURING WHICH PERIOD HE REMAINS AT HOME, AND EXCEPT FOR BEING IN A STATE OF READINESS TO ANSWER AN EMERGENCY, IS FREE TO FOLLOW HIS USUAL PURSUITS--- THE PERIOD OF STAND-BY TIME REASONABLY MAY NOT BE CONSIDERED "LABOR" WITHIN THE MEANING OF THE 1934 STATUTE AS WOULD REQUIRE THE PAYMENT OF OVERTIME COMPENSATION FOR HOURS OF LABOR IN EXCESS OF 40 IN A WORK-WEEK AS AUTHORIZED BY THAT STATUTE. NEITHER WOULD IT APPEAR THAT SUCH STAND-BY TIME CONSTITUTES "WORK" WITHIN THE MEANING OF THAT TERM AS USED IN THE EIGHT-HOUR LAW OF AUGUST 1, 1892.

ON THE OTHER HAND, CONSIDERING THE DEFINITE RESTRICTIONS PLACED UPON THE EMPLOYEE'S USE OF HIS TIME FOR THE BENEFIT OF THE GOVERNMENT WHEN IN A STAND-BY STATUS SUCH AS CONTEMPLATED HERE, IT WOULD SEEM THAT HE IS ENTITLED TO RECEIVE SOME COMPENSATING BENEFIT. AND, IN THAT RESPECT, THERE APPEARS NO OBJECTION TO THE PAYMENT OF PREMIUM COMPENSATION--- UPON A PRO RATA BASIS OF REGULAR COMPENSATION--- IN RECOGNITION OF SUCH RESTRICTIONS UPON THE EMPLOYEE'S FREEDOM OF ACTION.

IN VIEW OF THE FOREGOING AND CONSIDERING THE FACT THAT THE ADDITIONAL INFORMATION FURNISHED APPEARS TO ESTABLISH THAT IT IS THE PRACTICE OF THE ELECTRIC POWER INDUSTRY IN THE PARTICULAR GEOGRAPHICAL LOCATIONS IN WHICH DEPARTMENT'S POWER/PLANTS ARE LOCATED TO ENTER INTO SIMILAR WAGE AGREEMENTS, NO OBJECTION IS PERCEIVED TO THE FIXING OF COMPENSATION FOR SUCH STAND-BY TIME ON THE BASIS PROPOSED UNDER THE SECRETARY'S AUTHORITY TO PRESCRIBE RATES OF PAY FOR EMPLOYEES SUCH AS HERE INVOLVED IN ACCORDANCE WITH PREVAILING RATES. CF. SECTION 25.253 OF THE FEDERAL EMPLOYEES PAY REGULATIONS, ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, 68 STAT. 1111, AND PUBLISHED IN THE FEDERAL REGISTER ON NOVEMBER 2, 1954, WHICH AUTHORIZES, UNDER CERTAIN CIRCUMSTANCES, THE PAYMENT OF ADDITIONAL COMPENSATION TO EMPLOYEES REQUIRED TO REMAIN "ON CALL" IN THEIR LIVING QUARTERS. ALSO, THERE IS PERCEIVED NO OBJECTION TO THE ADMINISTRATIVE FIXING OF A TOUR OF DUTY CONSISTING OF ACTUAL WORKING TIME AND STAND-BY TIME AS PROPOSED.