B-144390, JANUARY 4, 1961, 40 COMP. GEN. 397

B-144390, JANUARY 4, 1961, 40 COMP. GEN. 397

CIVILIAN PERSONNEL - CLASSIFIED AND WAGE BOARD EMPLOYEES - NIGHT DIFFERENTIAL WORK AND STANDBY DUTY CLASSIFIED EMPLOYEES WHO FOR THE CONVENIENCE OF THE GOVERNMENT ARE REQUIRED TO WORK OR BE AVAILABLE FOR WORK DURING ENTIRE 24-HOUR PERIOD AND ARE PAID UNDER THE TWO-THIRDS RULE SHOULD NOT BE DEPRIVED OF NIGHT DIFFERENTIAL PAY FOR WORK AND STANDBY SERVICE ACTUALLY PERFORMED BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. MERELY BECAUSE IT IS NOT ADMINISTRATIVELY PRACTICABLE TO SPECIFY THE HOURS BETWEEN 6 P.M. AND 6 A.M. THAT THEY ARE TO REMAIN IN AN ACTUAL WORK OR STANDBY STATUS--- AS DISTINGUISHED FROM TIME SET APART FOR EATING AND SLEEPING; ACCORDINGLY, WHERE WORK IS AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS, THE EMPLOYEES MAY PROPERLY BE PAID NIGHT DIFFERENTIAL FOR "REGULARLY SCHEDULED WORK" IN ACCORDANCE WITH SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 921. TO CONSTITUTE "REGULARLY SCHEDULED WORK" BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. FOR ENTITLEMENT TO NIGHT DIFFERENTIAL UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT, AS AMENDED, 5 U.S.C. 921, THE WORK MUST BE DULY AUTHORIZED IN ADVANCE AND MUST BE SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS; THE REQUIREMENT STATED IN 36 COMP. GEN. 657 THAT WORK MUST BE SCHEDULED OVER TWO SUCCESSIVE ADMINISTRATIVE WORKWEEKS TO CONSTITUTE "REGULARLY SCHEDULED WORK" IS MODIFIED ACCORDINGLY. THE AUTHORITY FOR PAYMENT OR DENIAL OF NIGHT DIFFERENTIAL TO NAVY WAGE BOARD EMPLOYEES WHO HAVE THEIR COMPENSATION FIXED UNDER 10 U.S.C. 7474 AND ARE REQUIRED TO PERFORM WORK AND STANDBY DUTY BETWEEN 6 P.M. AND 7 A.M. ON TRIAL TRIPS OF VESSELS IS DEPENDENT UPON WHETHER EMPLOYEES IN PRIVATE INDUSTRY UNDER COMPARABLE CONDITIONS RECEIVE NIGHT DIFFERENTIAL PAY FOR WORK AND STANDBY DUTY AT NIGHT; IF THEY DO RECEIVE NIGHT PAY, THEN NAVY WAGE BOARD EMPLOYEES WOULD BE ENTITLED TO NIGHT DIFFERENTIAL, IF NOT, THEN NIGHT DIFFERENTIAL WOULD BE UNAUTHORIZED AND A REASONABLE BASIS EXISTS FOR A DETERMINATION TO DENY NIGHT DIFFERENTIAL TO THE EMPLOYEES, UNLESS PUBLIC INTEREST CONSIDERATIONS REQUIRE A DIFFERENT CONCLUSION. PAYMENT OF NIGHT DIFFERENTIAL TO WAGE BOARD EMPLOYEES ASSIGNED TO TRIAL TRIP DUTY ABOARD VESSELS UNDER CIRCUMSTANCES ENTITLING THEM TO NIGHT DIFFERENTIAL MAY BE RESTRICTED ADMINISTRATIVELY TO PERIODS OF ACTUAL WORK AND STANDBY DUTY AS DISTINGUISHED FROM PERIODS SET ASIDE FOR EATING AND SLEEPING.

TO THE SECRETARY OF THE NAVY, JANUARY 4, 1961:

ON NOVEMBER 3, 1960, YOUR ASSISTANT SECRETARY OF THE NAVY REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF PAYING NIGHT DIFFERENTIAL TO CLASSIFIED AND PREVAILING RATE EMPLOYEES WHILE PERFORMING TRIAL TRIP DUTY ON VESSELS.

YOUR CURRENT REGULATIONS PROVIDE FOR PAYMENT TO THOSE EMPLOYEES UNDER THE TWO-THIRDS RULE FROM THE TIME OF EMBARKATION TO THE TIME OF DISEMBARKATION. WE UNDERSTAND THAT ALTHOUGH MANY TRIAL TRIPS ON VESSELS ARE FOR ONLY A FEW DAYS DURATION, OTHERS MAY LAST FOR SEVERAL WEEKS. THE DUTY PERFORMED DURING SUCH TRIAL TRIPS CONSISTS PRIMARILY OF OBSERVING INSTRUMENTS, RECORDING INFORMATION, AND ADJUSTING MACHINERY OR EQUIPMENT. HOWEVER, IN EMERGENCIES, THE EMPLOYEES INVOLVED MAY PERFORM MORE EXTENSIVE DUTIES. ALSO, WE UNDERSTAND THAT PERIODS OF REGULAR DUTY, STAND-BY DUTY, AND EATING AND SLEEPING TIME CANNOT BE CLEARLY DEFINED. THUS, IT IS IMPRACTICABLE TO ATTEMPT TO PRESCRIBE WHICH PORTION OF A 24-HOUR PERIOD SHOULD BE CLASSIFIED AS THE REGULAR DUTY PERIOD, THE STAND-BY PERIOD, AND EATING AND SLEEPING TIME. IN THE CIRCUMSTANCES YOUR DEPARTMENT'S DETERMINATION TO RETAIN THE EMPLOYEES CONTINUOUSLY IN A DUTY AND STAND-BY STATUS DURING THE ENTIRE TRIP AND COMPENSATE THEM UNDER THE TWO-THIRDS RULE AS PROVIDED FOR IN THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS IS NOT UNREASONABLE.

YOUR ASSISTANT SECRETARY SAYS THAT:

IT IS RECOGNIZED THAT THE TWO-THIRDS RULE HAS BEEN APPLIED TO SPECIFIC CATEGORIES OF EMPLOYEES, AND THAT THE PRACTICE WITH RESPECT TO THE APPLICATION OF THE RULE TO SUCH CATEGORIES IS WELL ESTABLISHED. HOWEVER, IT IS DEEMED NECESSARY TO OBTAIN YOUR DECISION AT THIS TIME WITH RESPECT TO THE APPLICATION OF THE RULE TO EMPLOYEES OF THIS DEPARTMENT ENGAGED IN DUTIES ABOARD SHIP DURING TRIAL TRIPS OF VESSELS. YOUR DECISION OF THESE QUESTIONS IS ACCORDINGLY REQUESTED:

(1) IS IT MANDATORY UNDER SECTION 301A OF THE FEDERAL EMPLOYEES PAY ACT, AND RELEVANT REGULATIONS OF THE CIVIL SERVICE COMMISSION, THAT NIGHT DIFFERENTIAL BE PAID EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949 PERFORMING TRIAL TRIP DUTY ON VESSELS WHEN THEY ARE BEING PAID UNDER THE TWO-THIRDS RULE FOR A SUBSTANTIAL AMOUNT OF STAND-BY TIME IN WHICH NO ACTUAL WORK IS PERFORMED?

(2) IF THE ANSWER TO THE ABOVE QUESTION IS IN THE NEGATIVE, DOES A BASIS EXIST FOR DENYING SUCH EMPLOYEES NIGHT DIFFERENTIAL PAYMENT FOR WORK AND STANDBY TIME PERFORMED BETWEEN 6 P.M. AND 6 A.M.? FOR EXAMPLE, COULD THIS DEPARTMENT BY REGULATION RESTRICT THE PAYMENT OF NIGHT DIFFERENTIAL FOR ANY PORTION OF THE WORK AND STANDBY TIME PERFORMED BETWEEN 6 P.M. AND 6 A.M.?

CONCERNING THOSE TWO QUESTIONS, WE MUST CONSIDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED SEPTEMBER 1, 1954, 68 STAT 1110, 5 U.S.C. 921. THAT SECTION PROVIDES:

SEC. 301. (A) ANY REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF SIX O- CLOCK POST MERIDIAN AND SIX O-CLOCK ANTEMERIDIAN (INCLUDING PERIODS OF ABSENCE WITH PAY DURING SUCH HOURS DUE TO HOLIDAYS, AND ANY SUCH HOURS WITHIN PERIODS OF LEAVE WITH PAY IF SUCH PERIODS TOTAL LESS THAN EIGHT HOURS DURING ANY PAY PERIOD) SHALL BE CONSIDERED NIGHT WORK, EXCEPT AS PROVIDED IN SUBSECTION (B), AND ANY OFFICER OR EMPLOYEE PERFORMING SUCH WORK TO WHOM THIS TITLE APPLIES SHALL BE COMPENSATED FOR SUCH WORK AT HIS RATE OF BASIC COMPENSATION PLUS PREMIUM COMPENSATION AMOUNTING TO 10 PERCENTUM OF SUCH RATE, UNLESS OTHERWISE PROVIDED IN TITLE IV OF THIS ACT. THIS SECTION SHALL NOT OPERATE TO MODIFY THE PROVISIONS OF THE ACT OF JULY 1, 1944 ( PUBLIC LAW NUMBER 394, SEVENTY-EIGHTH CONGRESS), OR ANY OTHER LAW AUTHORIZING ADDITIONAL COMPENSATION FOR NIGHT WORK.

(B) THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATION, MAY DESIGNATE ANY TIME AFTER SIX O-CLOCK POST MERIDIAN AND ANY TIME BEFORE SIX O-CLOCK ANTEMERIDIAN AS THE BEGINNING AND END, RESPECTIVELY, OF NIGHT WORK FOR THE PURPOSE OF SUBSECTION (A) AT ANY POST OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA WHERE CUSTOMARY HOURS OF BUSINESS EXTEND INTO THE HOURS OF NIGHT WORK PROVIDED BY SUCH SUBSECTION.

WHILE IT COULD BE SAID THAT NO NIGHT DIFFERENTIAL WOULD BE PAYABLE TO CLASSIFIED EMPLOYEES WHO ARE ASSIGNED TO TRIAL TRIP DUTY SINCE THEY HAVE NO REGULARLY SCHEDULED PERIOD OF WORK OR STANDBY DUTY FALLING BETWEEN 6 P.M. AND 6 A.M., YET THE EMPLOYEES INVOLVED ARE REQUIRED TO WORK OR TO BE AVAILABLE FOR WORK DURING THE ENTIRE 24-HOUR PERIOD. BECAUSE, FOR THE CONVENIENCE OF THE GOVERNMENT, IT IS NOT PRACTICABLE TO SPECIFY THE HOURS BETWEEN 6 P.M. AND 6 A.M. THAT THE EMPLOYEE IS TO REMAIN IN AN ACTUAL WORK OR STANDBY STATUS--- AS DISTINGUISHED FROM TIME SET APART FOR SLEEPING AND EATING--- SHOULD NOT DEPRIVE HIM OF NIGHT DIFFERENTIAL PAY FOR WORK AND STANDBY SERVICE ACTUALLY PERFORMED BETWEEN THOSE HOURS. SEE JUAN AVILES, ET AL. V. UNITED STATES, CT. CL. NO. 278-56, AND JOHN FRANKLIN MCMAHON, ET AL. V. UNITED STATES, CT. CL. NO. 30-57, BOTH DECIDED OCTOBER 5, 1960. HENCE, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE, THUS RENDERING UNNECESSARY A REPLY TO THE SECOND QUESTION.

THE ANSWER TO THE FOREGOING QUESTION IS BASED UPON THE ASSUMPTION THAT THE NIGHT WORK PERFORMED CONSTITUTES "REGULARLY SCHEDULED WORK.' CONSTITUTE "REGULARLY SCHEDULED WORK" THE WORK MUST BE DULY AUTHORIZED IN ADVANCE AND MUST BE SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. THE REQUIREMENT IN 36 COMP. GEN. 657 THAT WORK MUST BE SCHEDULED OVER TWO SUCCESSIVE ADMINISTRATIVE WORKWEEKS TO CONSTITUTE "REGULARLY SCHEDULED WORK" IS MODIFIED TO THE EXTENT THAT IT IS INCONSISTENT WITH THE FOREGOING. COMPARE 29 COMP. GEN. 73.

CONCERNING PREVAILING RATE EMPLOYEES WHO ARE ASSIGNED TO TRIAL TRIP DUTY, YOUR ASSISTANT SECRETARY ASKS THE FOLLOWING QUESTIONS:

(1) DOES THE DEPARTMENT OF THE NAVY HAVE AUTHORITY TO CHANGE ITS REGULATIONS TO DENY PAYMENT OF THE NIGHT DIFFERENTIAL TO EMPLOYEES PAID PREVAILING RATES WHO PERFORM WORK AND STANDBY TIME ON TRIAL TRIPS ON VESSELS BETWEEN THE HOURS OF 6 P.M. AND 7 A.M.?

(2) IF THE ANSWER TO THE ABOVE QUESTION IS IN THE NEGATIVE, IF THERE AUTHORITY FOR RESTRICTION OF THE PAYMENT OF NIGHT DIFFERENTIAL TO THOSE HOURS SPENT WORKING OR STANDING BY?

THE RATES OF COMPENSATION OF THE PREVAILING RATE EMPLOYEES REFERRED TO IN THOSE TWO QUESTIONS ARE FIXED ACCORDANCE WITH 10 U.S.C. 7474, WHICH READS AS FOLLOWS:

THE SECRETARY OF THE NAVY SHALL ESTABLISH RATES OF WAGES FOR EMPLOYEES OF EACH NAVAL ACTIVITY WHERE THE RATES ARE NOT ESTABLISHED BY OTHER PROVISIONS OF LAW TO CONFORM, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST, WITH THOSE OF PRIVATE ESTABLISHMENTS IN THE IMMEDIATE VICINITY.

WE DO NOT KNOW WHETHER EMPLOYEES OF PRIVATE ESTABLISHMENTS ARE TEMPORARILY ASSIGNED ON TRIAL RUNS OF VESSELS IN LOCATIONS AND UNDER CONDITIONS COMPARABLE WITH THOSE UNDER WHICH EMPLOYEES OF YOUR DEPARTMENT ALSO ORDINARILY WOULD BE ENTITLED TO NIGHT DIFFERENTIAL PAY. CONVERSELY, IF EMPLOYEES OF PRIVATE ESTABLISHMENTS ARE SO ASSIGNED BUT DO NOT RECEIVE NIGHT PAY UNDER CONDITIONS COMPARABLE WITH THOSE UNDER WHICH NAVY EMPLOYEES ARE ASSIGNED, PAYMENT OF NIGHT DIFFERENTIAL PAY TO THE NAVY EMPLOYEES ORDINARILY WOULD BE UNAUTHORIZED. IN UNUSUAL CASES, PUBLIC INTEREST DETERMINATIONS WHICH MAY BE MADE BY YOU MIGHT REQUIRE DIFFERENT CONCLUSIONS IN THESE TWO CATEGORIES OF CASES. IF THERE ARE NO EMPLOYEES AT PRIVATE ESTABLISHMENTS ASSIGNED TO COMPARABLE DUTY ON VESSELS DURING TRIAL TRIPS, A REASONABLE BASIS MAY EXIST FOR A DETERMINATION BY YOU TO DENY PAYMENT OF NIGHT DIFFERENTIAL PAY TO PREVAILING RATE EMPLOYEES ASSIGNED TO SUCH TRIAL TRIP DUTY. THE FIRST OF THIS SET OF QUESTIONS IS ANSWERED ACCORDINGLY.

WE UNDERSTAND THE LAST QUESTION PERTAINS TO PREVAILING RATE EMPLOYEES WHO MIGHT BE ASSIGNED TO TRIAL TRIP DUTY UNDER CIRCUMSTANCES ENTITLING THEM TO NIGHT DIFFERENTIAL. YOUR DEPARTMENT WANTS TO KNOW WHETHER IN SUCH CASES THE PAYMENT OF NIGHT DIFFERENTIAL MAY BE RESTRICTED TO PERIODS OF ACTUAL WORK AND STANDBY DUTY AS DISTINGUISHED FROM PERIODS SET ASIDE FOR EATING AND SLEEPING. IF SUCH IS THE INTENT OF YOUR QUESTION, OUR VIEW IS THAT AN AFFIRMATIVE ANSWER IS WARRANTED BY JUDICIAL PRECEDENT. SEE ARMOUR AND COMPANY V. WANTEK, ET AL., 323 U.S. 126; WILLIAM AHEARN, ET AL. V. UNITED STATES, CT. CT. NO. 332-55, DECIDED OCTOBER 5, 1960; WILLIE C. SAWYER, ET AL. V. UNITED STATES, 138 CT.1CL. 152. IN FACT, PAYMENT TO THESE EMPLOYEES UNDER THE TWO-THIRDS RULE WOULD PRECLUDE PAYMENT TO COMPENSATION FOR THE 8 HOURS IN EACH 24 HOUR PERIOD THE EMPLOYEES SPEND EATING AND SLEEPING.