B-129363, NOV. 9, 1956

B-129363: Nov 9, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE DEPARTMENT OF THE NAVY HAS REPORTED THAT FIREFIGHTERS AT THE NEW YORK NAVAL SHIPYARD ARE ON TOURS OF DUTY OF 24 HOURS "ON" AND 24 HOURS "OFF.'. THE 24-HOUR DAY IS DIVIDED INTO AN 8-HOUR WORK STATUS. PAYMENT IS MADE FOR 16 HOURS A DAY AS PROVIDED BY NAVY CIVILIAN PERSONNEL INSTRUCTIONS. THAT YOU HAVE BEEN PAID IN ACCORDANCE WITH THOSE INSTRUCTIONS. THERE COULD BE ADOPTED THE "TWO- THIRDS RULE" FOR FIREFIGHTERS AND SIMILAR PROTECTIVE AND CUSTODIAL EMPLOYEES WHO ARE REQUIRED TO RENDER "STANDBY" OR "ON CALL" SERVICE IN ROTATING SHIFT SYSTEMS. THAT IS TO SAY. THIS WAS PERMITTED IN LIEU OF AVERAGING THE NUMBER OF REGULARLY SCHEDULED HOURS OF DUTY PER WEEK IN A CYCLE OF MORE THAN ONE WEEK AS PROVIDED BY SECTION 301 (B) (2).

B-129363, NOV. 9, 1956

TO MR. HAROLD ZIBALESE:

YOUR LETTER OF SEPTEMBER 11, 1956, REQUESTS, IN EFFECT, REVIEW OF OUR OFFICE SETTLEMENT DATED AUGUST 30, 1956, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION AND EXTRA NIGHT PAY DIFFERENTIAL FOR EMPLOYMENT AT THE NEW YORK NAVAL SHIPYARD DURING THE PERIOD FROM JUNE 13, 1948, TO MAY 1956.

THE DEPARTMENT OF THE NAVY HAS REPORTED THAT FIREFIGHTERS AT THE NEW YORK NAVAL SHIPYARD ARE ON TOURS OF DUTY OF 24 HOURS "ON" AND 24 HOURS "OFF.' THE 24-HOUR DAY IS DIVIDED INTO AN 8-HOUR WORK STATUS, 8 HOUR STAND-BY STATUS, AND 8-HOUR SLEEPING STATUS. PAYMENT IS MADE FOR 16 HOURS A DAY AS PROVIDED BY NAVY CIVILIAN PERSONNEL INSTRUCTIONS, NCPI 85.4-5, AND THAT YOU HAVE BEEN PAID IN ACCORDANCE WITH THOSE INSTRUCTIONS.

IN OUR DECISION OF AUGUST 8, 1945, 25 COMP. GEN. 161, WE HELD THAT FOR ALL COMPENSATION PURPOSES, INCLUDING THE APPLICATION OF THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THERE COULD BE ADOPTED THE "TWO- THIRDS RULE" FOR FIREFIGHTERS AND SIMILAR PROTECTIVE AND CUSTODIAL EMPLOYEES WHO ARE REQUIRED TO RENDER "STANDBY" OR "ON CALL" SERVICE IN ROTATING SHIFT SYSTEMS. THAT IS TO SAY, TWO-THIRDS OF EACH 24-HOUR SHIFT REPRESENTS TIME IN A PAY STATUS, AND ONE-THIRD AS TIMEOUT FOR SLEEPING AND EATING. THIS WAS PERMITTED IN LIEU OF AVERAGING THE NUMBER OF REGULARLY SCHEDULED HOURS OF DUTY PER WEEK IN A CYCLE OF MORE THAN ONE WEEK AS PROVIDED BY SECTION 301 (B) (2), CHAPTER I OF THE CIVIL SERVICE COMMISSION'S REGULATIONS UNDER THE ACT. THE RULE IS ALSO BASED ON THE CASES OF ARMOUR AND COMPANY V. WANTOCK, 323 U.S. 126, AND SKIDMORE V. SWIFT AND COMPANY, 323 U.S. 134, IN WHICH THE UNITED STATES SUPREME COURT, IN APPLYING THE FAIR LABOR STANDARDS ACT, HELD THAT PAYMENT WAS NOT TO BE MADE FOR SLEEPING AND EATING TIME. THAT PRINCIPLE HAS BEEN FOLLOWED IN SIMILAR FACTUAL SITUATIONS BY OTHER COURTS.

SINCE IT APPEARS, AS REPORTED BY THE DEPARTMENT OF THE NAVY, THAT YOU WERE PAID FOR 16 HOURS A DAY, IN ACCORDANCE WITH REGULATIONS COVERED BY THE STATUTES IN EFFECT DURING THE TIME OF YOUR EMPLOYMENT, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR COMPENSATION FOR THE REMAINING 8 HOURS OUT OF EACH 24-HOUR TOUR OF DUTY WHICH HOURS PROPERLY ARE TO BE CONSIDERED TIME OUT FOR SLEEPING AND EATING.