B-135278, APRIL 14, 1958, 37 COMP. GEN. 673

B-135278, APRIL 14, 1958, 37 COMP. GEN. 673

CIVILIAN PERSONNEL - COMPENSATION - OVERTIME - STANDBY TIME - SAVED PAY THE SAVINGS PROVISION IN SECTION 208 (B) OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 926 NOTE, FOR EMPLOYEES WORKING A REGULAR 72-HOUR TOUR OF DUTY, INVOLVING SUBSTANTIAL STANDBY TIME, IS APPLICABLE TO THOSE EMPLOYEES WHO ARE PERFORMING SUCH DUTY ON THE DATE THE ADMINISTRATIVE AGENCY PLACES INTO EFFECT THE REGULATIONS TO IMPLEMENT SECTION 208; THEREFORE, NAVY FIREFIGHTERS WHO, AFTER BEING GIVEN THE BENEFIT OF THE SAVINGS PROVISION ON THE EFFECTIVE DATE OF ADMINISTRATIVE REGULATIONS, WERE PROMOTED AND ASSIGNED TO A 48-HOUR TOUR OF DUTY WITH NO STANDBY DUTY AND SUBSEQUENTLY WERE PLACED ON A 72-HOUR TOUR OF DUTY INVOLVING STANDBY DUTY, WHICH RESULTED IN A DECREASE IN COMPENSATION, ARE NOT ENTITLED TO HAVE THE SAVINGS PROVISION APPLIED AGAIN.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 14, 1958:

ON FEBRUARY 17, 1958, YOU REQUESTED OUR DECISION CONCERNING THE APPLICATION OF THE SAVED RATE COMPENSATION PROVISIONS OF SECTION 208 (B) OF THE ACT OF SEPTEMBER 1, 1954 ( PUBLIC LAW 763), 68 STAT. 1111, 5 U.S.C. 926 NOTE, TO FIVE NAVY FIREFIGHTERS WHOSE BASIC RATE OF COMPENSATION WAS CHANGED FROM AN HOURLY OVERTIME PAYMENT TO A PAYMENT BASED UPON THE "ADDITIONAL ANNUAL OMPENSATION" PROVISIONS OF SECTION 208, 5 U.S.C. 926.

SECTION 208 (B) READS AS FOLLOWS:

NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO DECREASE THE EXISTING AGGREGATE RATE OF COMPENSATION OF ANY PRESENT EMPLOYEE, BUT WHEN THE POSITION OF SUCH EMPLOYEE BECOMES VACANT ANY SUBSEQUENT APPOINTEE THERETO SHALL RECEIVE PREMIUM COMPENSATION PROVIDED FOR SUCH POSITION IN ACCORDANCE WITH THIS SECTION.

IN OUR DECISION OF APRIL 4, 1955, B-121881, TO THE FORMER CHAIRMAN OF THE CIVIL SERVICE COMMISSION, WE SAID THAT WHILE SECTION 208 OF PUBLIC LAW 763 BECAME EFFECTIVE AS LAW AT THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGAN MORE THAN 60 DAYS AFTER THE DATE OF ITS ENACTMENT, IT IS NOT SELF- EXECUTING. IT BECAME OPERATIVE ON ITS EFFECTIVE DATES ONLY AS TO THE AFFECTED EMPLOYEES OF THOSE DEPARTMENTS AND AGENCIES WHOSE HEADS, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, HAD AT THAT TIME TAKEN THE NECESSARY ADMINISTRATIVE ACTION TO IMPLEMENT ITS PROVISIONS.

THE RECORD SHOWS THAT EFFECTIVE WITH THE BEGINNING OF THE FIRST PAY PERIOD AFTER OCTOBER 31, 1954, THE PROVISIONS OF SECTION 208 WERE MADE APPLICABLE TO ALL NAVY FIREFIGHTER POSITIONS THE INCUMBENTS OF WHICH WERE REQUIRED TO REMAIN AT THEIR STATIONS DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTED IN REMAINING IN A STANDBY STATUS. AT THAT TIME ALL NAVY FIREFIGHTERS IN THAT CATEGORY EITHER HAD THEIR EXISTING AGGREGATE RATES OF COMPENSATION SAVED UNDER SECTION 208 (B) OR BECAME ENTITLED TO ADDITIONAL ANNUAL RATES OF COMPENSATION UNDER SECTION 208 (A), 5 U.S.C. 926.

THE FIVE NAVY FIREFIGHTERS REFERRED TO IN YOUR LETTER WERE WORKING A REGULAR 72-HOUR TOUR OF DUTY AS STRUCTURAL FIRE FIGHTERS (GS-4) INVOLVING SUBSTANTIAL STANDBY TIME ON NOVEMBER 7, 1954, THE DATE THE PROVISIONS OF SECTION 208 WERE PLACED INTO EFFECT AND WE UNDERSTAND THAT THEIR EXISTING AGGREGATE RATES OF COMPENSATION WERE SAVED BY SECTION 208 (B) AT THAT TIME. ON MAY 5, 1956, THESE STRUCTURAL FIREFIGHTERS WERE PROMOTED TO CRASH FIREFIGHTERS (GS-5) AND ASSIGNED A 48-HOUR TOUR OF DUTY (40 HOURS BASIC AND 8 HOURS OVERTIME PAY PER WEEK). ON SEPTEMBER 8, 1957, THEY WERE AGAIN PLACED ON A REGULAR 72 HOUR TOUR OF DUTY INVOLVING SUBSTANTIAL STANDBY TIME, AND THEIR COMPENSATION WAS COMPUTED UPON AN ADDITIONAL ANNUAL RATE BASIS UNDER SECTION 208 (A) WHICH RESULTED IN A DECREASE IN THEIR AGGREGATE ANNUAL COMPENSATION. YOUR QUESTION IS WHETHER THE SAVED COMPENSATION PROVISIONS OF SECTION 208 (B) SHOULD HAVE BEEN APPLIED TO THE COMPENSATION OF THESE EMPLOYEES INCIDENT TO THE CHANGE ON SEPTEMBER 8, 1957.

IN THAT REGARD YOUR LETTER SHOWS THAT SOME RELIANCE WAS PLACED UPON THE VIEWS EXPRESSED IN OUR LETTER OF APRIL 4, 1955, B-121881, TO YOUR PREDECESSOR, CONCERNING THE DEFINITION OF THE TERM ,PRESENT EMPLOYEE.' THE NEXT TO THE LAST PARAGRAPH OF THAT LETTER WE SAID---

ACCORDINGLY, IT IS RECOMMENDED THAT CONSIDERATION BE GIVEN TO MODIFYING THE LANGUAGE OF PROPOSED SECTION 25.274 SO THAT THE TERM "PRESENT EMPLOYEE" IN SUBSTANCE WOULD BE DEFINED AS AN EMPLOYEE ON THE ROLLS OF A DEPARTMENT OR AGENCY IMMEDIATELY PRIOR TO THE DATE ON WHICH THE PROVISIONS OF SECTION 208 OF THE STATUTE ARE, BY ADMINISTRATIVE ACTION, MADE APPLICABLE TO HIM.

WHILE THE DISCUSSION IN OUR REFERRED-TO LETTER OF APRIL 4, 1955, RELATED EXCLUSIVELY TO EMPLOYEES IN POSITIONS REQUIRING THEM REGULARLY TO REMAIN AT OR WITHIN THE CONFINES OF THEIR STATIONS DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTED OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK, THE ABOVE QUOTED PARAGRAPH WOULD MORE CLEARLY HAVE EXPRESSED OUR VIEW HAD LANGUAGE TO THAT EFFECT BEEN INSERTED BETWEEN THE WORDS ,EMPLOYEE" AND "ON" IN THE THIRD LINE OF THE PARAGRAPH. THUS, IT HAS BEEN AND IS OUR VIEW THAT ANY EMPLOYEE WORKING AN ORDINARY TOUR OF DUTY WHOSE AGENCY ADOPTS THE SYSTEM PROVIDED BY SECTION 401 (1) OF THE AMENDMENT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 926 (1), AND WHO AT THAT TIME IS ASSIGNED TO A POSITION OF THE NATURE CONTEMPLATED BY SECTION 208 (A), MAY BE COMPENSATED ONLY AT AN ADDITIONAL ANNUAL RATE IN LIEU OF OTHER FORMS OF PREMIUM PAY PROVIDED IN PUBLIC LAW 763. IT IS ONLY THESE EMPLOYEES WHO ARE WORKING LONGER THAN USUAL TOURS OF DUTY WITHIN THE CONFINES OF THEIR STATIONS, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS, AT THE TIME OF THE ADOPTION BY THE AGENCY OF THE ADDITIONAL ANNUAL RATE PAY SYSTEM, WHO ARE ELIGIBLE FOR THE SAVING BENEFITS OF SECTION 208 (B). THUS, THE EMPLOYEES HERE CONSIDERED WHO WORKED A 48-HOUR WEEK WITH NO STANDBY DUTY WOULD NOT APPEAR TO BE ENTITLED TO THE BENEFITS OF THE SAVING SECTION.

CONFERENCE REPORT NO. 2665, 83D CONGRESS, ON H.R. 2263 (WHICH ULTIMATELY BECAME PUBLIC LAW 763), AT PAGE 23, DISCUSSES THE APPLICABILITY OF SECTION 208 (B) TO FIREFIGHTERS. WE BELIEVE THAT THE DISCUSSION IN THE REPORT LENDS SUPPORT TO OUR VIEW. THEREFORE, OUR ANSWER TO YOUR QUESTION MUST BE IN THE NEGATIVE.