B-122263, MARCH 31, 1955, 34 COMP. GEN. 488

B-122263: Mar 31, 1955

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EMPLOYEES - COMPUTATION WAGE BOARD EMPLOYEES WHOSE NORMAL WORK SHIFTS CONSISTING OF TEN DAYS DUTY AND FOUR DAYS OFF ARE REQUIRED TO BE CHANGED PERIODICALLY. ARE NOT PRECLUDED BY SECTION 23 OF THE 40-HOUR WEEK STATUTE OF MARCH 28. BOTH OF THE EMPLOYEES ARE PUMPING PLANT AND ELECTRIC SUBSTATION OPERATORS WHO ARE IN THE TRADES AND OCCUPATIONS GROUPS WITH BASIS FOR SALARY PAYMENTS SUPPLIED BY LOCAL WAGE SCHEDULES. IT IS UNDERSTOOD THAT THE WORK SHIFTS (SO- CALLED 5-2 BACK-TO-BACK SHIFTS) OF BOTH EMPLOYEES NORMALLY CONSIST OF 10 DAYS' DUTY AND 4 DAYS OFF. THE ADMINISTRATIVELY PRESCRIBED WORKWEEK WAS CHANGED FROM SUNDAY THROUGH SATURDAY TO THURSDAY THROUGH WEDNESDAY AND IN THE CASE OF THE OTHER.

B-122263, MARCH 31, 1955, 34 COMP. GEN. 488

COMPENSATION - OVERTIME - WAGE BOARD, ETC., EMPLOYEES - COMPUTATION WAGE BOARD EMPLOYEES WHOSE NORMAL WORK SHIFTS CONSISTING OF TEN DAYS DUTY AND FOUR DAYS OFF ARE REQUIRED TO BE CHANGED PERIODICALLY, WITH RESULT THAT THE LAST WORKWEEK IN THE OLD SCHEDULE AND THE FIRST WORKWEEK IN THE NEW SCHEDULE OVERLAP, ARE NOT PRECLUDED BY SECTION 23 OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934 FROM RECEIVING ADDITIONAL COMPENSATION FOR OVERTIME PERFORMED DURING THE OVERLAPPING PERIOD WHICH WOULD YIELD THE HIGHER TOTAL COMPENSATION FOR BOTH WORKWEEKS.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO WILLIAM J. RIDER, DEPARTMENT OF THE INTERIOR, MARCH 31, 1955:

YOUR LETTER OF NOVEMBER 19, 1954, REFERENCE 2-363, REQUESTS ADVICE AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A PAYROLL VOUCHER IN FAVOR OF TWO EMPLOYEES OF THE TRACY PUMPING PLANT, AN INSTALLATION OF THE CENTRAL VALLEY PROJECT OF THE BUREAU OF RECLAMATION. BOTH OF THE EMPLOYEES ARE PUMPING PLANT AND ELECTRIC SUBSTATION OPERATORS WHO ARE IN THE TRADES AND OCCUPATIONS GROUPS WITH BASIS FOR SALARY PAYMENTS SUPPLIED BY LOCAL WAGE SCHEDULES. THE AMOUNT CLAIMED ON THE VOUCHER REPRESENTS THE DIFFERENCE BETWEEN REGULAR COMPENSATION AND OVERTIME COMPENSATION CLAIMED TO BE DUE FOR SERVICES RENDERED ON SPECIFIED DAYS UNDER THE CIRCUMSTANCES HEREINAFTER SET FORTH.

THE TRACY PUMPING PLANT OPERATES ON AN AROUND-THE-CLOCK SHIFT BASIS WHICH, YOU ATE,"NECESSITATES PERIODIC CHANGES OF THE ADMINISTRATIVELY DETERMINED WORKWEEK, IN ORDER TO CHANGE THE EMPLOYEES' DAYS OFF AND FOR OTHER ADMINISTRATIVE REASONS.' IT IS UNDERSTOOD THAT THE WORK SHIFTS (SO- CALLED 5-2 BACK-TO-BACK SHIFTS) OF BOTH EMPLOYEES NORMALLY CONSIST OF 10 DAYS' DUTY AND 4 DAYS OFF, AND THAT THE QUESTION OF OVERTIME COMPENSATION ARISES BY REASON OF CHANGES IN THE ADMINISTRATIVE WORKWEEK OF EACH OF THE EMPLOYEES. IN THE CASE OF ONE OF THE EMPLOYEES, THE ADMINISTRATIVELY PRESCRIBED WORKWEEK WAS CHANGED FROM SUNDAY THROUGH SATURDAY TO THURSDAY THROUGH WEDNESDAY AND IN THE CASE OF THE OTHER, FROM WEDNESDAY THROUGH TUESDAY TO THURSDAY THROUGH WEDNESDAY. THERE IS NO QUESTION AS TO THE ADMINISTRATIVE AUTHORITY TO EFFECT THE CHANGES IN THE WORKWEEK OF THE EMPLOYEES CONCERNED OR AS TO THE AUTHORITY OF THE OFFICER APPROVING SUCH CHANGES.

THE CLAIM OF EACH OF THE EMPLOYEES IS BASED UPON A DETERMINATION BY THE REGIONAL DIRECTOR, BUREAU OF RECLAMATION, TO THE EFFECT THAT WHERE CHANGES OCCUR IN THE ADMINISTRATIVE WORKWEEK OF EMPLOYEES OF THE CLASS HERE INVOLVED OVERTIME COMPENSATION IS TO BE COMPUTED UPON THE "OVERLAP" METHOD PRESCRIBED IN APPLICABLE UNION REGULATIONS CONTAINED IN PRENTICE-HALL LABOR EQUIPMENT POLICY, FEDERAL WAGE AND HOUR LAW, SECTION 7 (A), (10,304.6). IT FURTHER IS UNDERSTOOD THAT THE UNION REGULATIONS REFERRED TO PROVIDE THAT THE LAST WORKWEEK IN THE OLD SCHEDULE AND THE FIRST WORKWEEK IN THE NEW SCHEDULE BE OVERLAPPED, AND THAT THE HOURS WORKED IN THE OVERLAPPING PERIOD BE COUNTED IN WHICHEVER OF THE TWO WORKWEEKS THEIR INCLUSION WOULD YIELD THE HIGHER TOTAL COMPENSATION FOR BOTH WORKWEEKS. SUCH DETERMINATION BY THE REGIONAL DIRECTOR IS STATED TO HAVE BEEN MADE AS A RESULT OF A WAGE DISPUTE BETWEEN THE WORKMEN AT THE TRACY PUMPING PLANT, ACTING THROUGH THEIR UNION REPRESENTATIVE, AND THE BUREAU OF RECLAMATION.

THE AMOUNT CLAIMED BY EACH OF THE EMPLOYEES UNDER THE "OVERLAP" METHOD IS BEST DESCRIBED IN CHART FORM IN THE MANNER PRESENTED IN YOUR LETTER. THE FOLLOWING CHARTS REPRESENT THE OVERTIME CLAIMED BY EACH OF THE EMPLOYEES:

CHART

CLAIM NO. 1 (X WORKDAYS; - DAYS OFF)

AUG. SEPT.

F S S M T W T F S S M T W T F S S M T W

28 29 30 31 1 2 3 4 5 6 7 89 10 11 12 13 14 15 16

X X - - X X X X X X X X X X X X X X - -

OT OT

( LAST OLD WORKWEEK)

( NEW WORKWEEK)

THE NEW WORKWEEK INCLUDING THE OVERLAP WOULD YIELD THE HIGHER COMPENSATION OR FIVE DAYS BASE AND TWO DAYS OVERTIME CLAIMED ON SEPTEMBER 8 AND 9.

CHART

CLAIM NO. 2 (X WORKDAYS; - DAYS OFF)

SEPT. OCT.

W T F S S M T W T F S S M T W T F S S M

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

- - X X X X X X X X X X X - -- - X X X

OT

( LAST OLD WORKWEEK)

( NEW WORKWEEK)

THE LAST OLD WORKWEEK INCLUDING THE OVERLAP WOULD YIELD THE HIGHER COMPENSATION OR FIVE DAYS BASE AND ONE DAY OVERTIME CLAIMED ON OCTOBER 12.

THE PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEES OF THE "SEVERAL TRADES AND OCCUPATIONS," WHOSE COMPENSATION IS ESTABLISHED BY WAGE BOARDS OR WAGE -FIXING AUTHORITIES, IS GOVERNED BY SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, AS AMENDED, 5 U.S.C. 673C, WHICH IS, IN PART, AS FOLLOWS:

* * * PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.

UNDER SECTION 23 IT IS WITHIN ADMINISTRATIVE DISCRETION TO PRESCRIBE THE DAYS OF THE WEEK ON WHICH THE 40 HOURS OF WORK COMPRISING THE REGULAR TOUR OF DUTY OF AN EMPLOYEE ARE REQUIRED TO BE PERFORMED. 27 COMP. GEN. 191, 193; 21 ID. 965, 968. SIMILARLY, IT IS WITHIN ADMINISTRATIVE DISCRETION TO MAKE CHANGES OR ADJUSTMENTS IN THE ADMINISTRATIVE WORKWEEK WHEN THE NEEDS OF THE SERVICE REQUIRE. 27 COMP. GEN. 191, 193; 18 ID. 206, 210. WHILE THE "OVERLAP" METHOD DESCRIBED IN YOUR SUBMISSION IS NOT PROVIDED FOR IN SECTION 23, THE ADOPTION OF THAT METHOD WOULD NOT APPEAR TO BE PROHIBITED BY THAT SECTION WHERE, AS HERE, IT DOES NOT RESULT IN EMPLOYEES' BEING DEPRIVED OF OVERTIME COMPENSATION TO WHICH OTHERWISE ENTITLED.

IN VIEW THEREOF, AND SINCE THE USE OF THE "OVERLAP" METHOD APPARENTLY IS IN CONFORMITY WITH THE PRACTICE OF THE INDUSTRY, THE PAYMENT OF ADDITIONAL COMPENSATION IS AUTHORIZED FOR THE OVERTIME SERVICES DETERMINED UNDER THE CIRCUMSTANCES DESCRIBED HEREIN.

THE VOUCHER, WHICH IS RETURNED HEREWITH, SHOULD BE RECOMPUTED BEFORE BEING CERTIFIED FOR PAYMENT SINCE THE DIFFERENCE BETWEEN THE AMOUNTS STATED TO BE DUE THE TWO EMPLOYEES IS NOT CONSISTENT WITH THE DIFFERENCE IN THE OVERTIME HOURS WORKED AND THEIR RATES OF COMPENSATION.