B-151647, JUNE 25, 1963, 42 COMP. GEN. 735

B-151647: Jun 25, 1963

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UNSCHEDULED - SUPERVISION EFFECT FOREST SERVICE FIREFIGHTER EMPLOYEES WHO ARE RECEIVING PREMIUM COMPENSATION UNDER 5 U.S.C. 926 (2) ON A SEASONAL BASIS FOR IRREGULAR AND UNSCHEDULED OVERTIME DUTY PERFORMED WITHOUT SUPERVISION AT THEIR OFFICIAL STATIONS WHEN THEY ARE DETAILED TO ANOTHER NATIONAL FOREST TO PERFORM UNDER SUPERVISION SIMILAR DUTIES. MAY HAVE THE BRIEF PERIODS OF SUCH ORDERED AND SUPERVISED DUTY REGARDED AS AN EXCEPTION TO THE ADMINISTRATIVE REGULATION WHICH REQUIRES THE EMPLOYEES FOR PREMIUM PAY ENTITLEMENT TO BE GENERALLY RESPONSIBLE FOR RECOGNIZING. PAYMENT FOR IRREGULAR OR UNSCHEDULED OVERTIME UNDER ANY OTHER AUTHORITY IS PRECLUDED. UNDER EXISTING PRACTICE THESE EMPLOYEES ARE PAID PREMIUM COMPENSATION DURING CRITICAL FIRE SEASONS AT THE RATE OF 15 PERCENT OF BASIC COMPENSATION.

B-151647, JUNE 25, 1963, 42 COMP. GEN. 735

COMPENSATION - OVERTIME - IRREGULAR, UNSCHEDULED - SUPERVISION EFFECT FOREST SERVICE FIREFIGHTER EMPLOYEES WHO ARE RECEIVING PREMIUM COMPENSATION UNDER 5 U.S.C. 926 (2) ON A SEASONAL BASIS FOR IRREGULAR AND UNSCHEDULED OVERTIME DUTY PERFORMED WITHOUT SUPERVISION AT THEIR OFFICIAL STATIONS WHEN THEY ARE DETAILED TO ANOTHER NATIONAL FOREST TO PERFORM UNDER SUPERVISION SIMILAR DUTIES, INCLUDING IRREGULAR AND UNSCHEDULED OVERTIME, MAY HAVE THE BRIEF PERIODS OF SUCH ORDERED AND SUPERVISED DUTY REGARDED AS AN EXCEPTION TO THE ADMINISTRATIVE REGULATION WHICH REQUIRES THE EMPLOYEES FOR PREMIUM PAY ENTITLEMENT TO BE GENERALLY RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES REQUIRING THEM TO REMAIN ON DUTY AND, THEREFORE, PREMIUM COMPENSATION MAY CONTINUE TO BE PAID DURING SUCH DETAILS, BUT PAYMENT FOR IRREGULAR OR UNSCHEDULED OVERTIME UNDER ANY OTHER AUTHORITY IS PRECLUDED.

TO THE SECRETARY OF AGRICULTURE, JUNE 25, 1963:

ON MAY 24, 1963, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF THE BASIS USED BY THE DEPARTMENT OF AGRICULTURE TO COMPENSATE CERTAIN EMPLOYEES OF THE FOREST SERVICE FOR OVERTIME WORK PERFORMED IN CONNECTION WITH THE DETECTION AND SUPPRESSION OF FOREST FIRES.

THE DUTIES OF THE POSITION OCCUPIED BY THE CLASS OF EMPLOYEES INVOLVED REQUIRE THEM DURING CRITICAL FIRE SEASONS TO RECOGNIZE INDEPENDENTLY AND WITHOUT SUPERVISIONS CIRCUMSTANCES REQUIRING THEM TO PERFORM OVERTIME WORK ON AN IRREGULAR AND UNSCHEDULED BASIS IN CONNECTION WITH THE DETECTION AND SUPPRESSION OF FOREST FIRES. UNDER EXISTING PRACTICE THESE EMPLOYEES ARE PAID PREMIUM COMPENSATION DURING CRITICAL FIRE SEASONS AT THE RATE OF 15 PERCENT OF BASIC COMPENSATION-- BUT NOT IN EXCESS OF 15 PERCENT OF THE MINIMUM SCHEDULED RATE FOR GRADE GS-9--- AS AUTHORIZED BY SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926 (2), AND IMPLEMENTING REGULATIONS OF THE CIVIL SERVICE COMMISSION FOR ALL IRREGULAR AND UNSCHEDULED OVERTIME, NIGHT, AND HOLIDAY DUTY REQUIRED OF THEM.

ON IRREGULAR OCCASIONS THESE EMPLOYEES ARE DETAILED FROM THEIR OFFICIAL STATIONS TO OTHER NATIONAL FORESTS TO ASSIST IN EMERGENCIES IN COMBATING SERIOUS FOREST FIRES. THE DURATION OF SUCH DETAILS MAY VARY FROM ONE OR TWO DAYS TO A WEEK OR MORE. WHILE ON SUCH DETAILS THE OVERTIME WORK PERFORMED BY THE EMPLOYEES CONCERNED USUALLY IS ORDERED BY SUPERVISORS OFFICIALLY STATIONED IN THE NATIONAL FOREST TO WHICH THEY ARE DETAILED. THEREFORE, UNDER THOSE CIRCUMSTANCES THEY EXERCISE A LESSER DEGREE OF JUDGMENT IN DETERMINING THE AMOUNT OF IRREGULAR AND UNSCHEDULED OVERTIME THEY MUST PERFORM THAN WHEN SERVING ON DUTY IN THE NATIONAL FOREST IN WHICH THEY ARE OFFICIALLY STATIONED. THE SPECIFIC QUESTIONS SUBMITTED BY THE ADMINISTRATIVE ASSISTANT SECRETARY ARE AS FOLLOWS:

(1) DO SECTIONS 25.263 (4) (II) (25.263 (C) (4) (II) (, 25.272 (B), AND 25.273 (B) PROHIBIT REMOVAL OF AN EMPLOYEE FROM ENTITLEMENT TO PREMIUM COMPENSATION UNDER 401 (2) WHEN SENT ON A DETAIL FOR A SHORT PERIOD OF TIME TO PERFORM FIRE SUPPRESSION WORK OF A KIND THAT IS ORDINARILY PERFORMED AT HIS OFFICIAL STATION BUT WHERE THE IRREGULAR, UNSCHEDULED OVERTIME MAY BE ORDERED RATHER THAN RESULTING FROM RECOGNITION OF CIRCUMSTANCES REQUIRING SUCH OVERTIME WORK?

(2) IF THE ANSWER TO QUESTION (1) IS IN THE NEGATIVE, DOES SECTION 25.272 (C) (1) APPLY IN SUCH A SITUATION?

SECTION 25.263 (C) IS IN PART AS FOLLOWS:

(C) THE EMPLOYEE GENERALLY IS "RESPONSIBLE" FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY.

(II) THE REQUIREMENT IS THAT THE EMPLOYEE REMAIN ON DUTY IN CONTINUATION OF A FULL, REGULARLY SCHEDULED, DAILY TOUR OF DUTY. * * *

SECTION 25.272 (B) READS AS FOLLOWS:

AN EMPLOYEE IN A POSITION IN WHICH CONDITIONS WARRANTING ADDITIONAL COMPENSATION UNDER SECTION 25.251 OR SECTION 25.261 EXIST ONLY DURING A CERTAIN PERIOD OF THE YEAR, SUCH AS DURING A GIVEN SEASON, SHALL BE PAID SUCH ADDITIONAL COMPENSATION ONLY DURING THE PERIOD HE IS SUBJECT TO SUCH CONDITIONS.

SECTION 25.273 (B) READS AS FOLLOWS:

EMPLOYEES RECEIVING ADDITIONAL COMPENSATION UNDER SECTION 25.261 SHALL NOT RECEIVE PREMIUM COMPENSATION FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY OR DUTY AT NIGHT OR ON HOLIDAYS UNDER ANY OTHER SECTIONS OF THIS SUBPART, BUT SHALL BE PAID UNDER OTHER SECTIONS OF THIS SUBPART FOR REGULARLY SCHEDULED OVERTIME DUTY.

ALSO PERTINENT TO THE QUESTIONS SUBMITTED IS THE FOLLOWING LANGUAGE APPEARING IN SECTION 25.261 WHICH READS "SUCH ADDITIONAL COMPENSATION ON AN ANNUAL BASIS TAKES THE PLACE OF ANY OTHER PREMIUM COMPENSATION PRESCRIBED IN THIS SUBPART EXCEPT PREMIUM COMPENSATION FOR REGULARLY SCHEDULED OVERTIME DUTY.'

THE PREMIUM COMPENSATION ON A SEASONAL BASIS FOR EMPLOYEES IN THE CATEGORY TO WHICH YOUR SUBMISSION APPLIES IS FIXED WITH THE KNOWLEDGE THAT OCCASIONALLY THEY MAY BE DETAILED TO OTHER NATIONAL FORESTS IN CASES OF FIRE EMERGENCY. WE UNDERSTAND THAT SUCH DETAILS ARE RELATIVELY INFREQUENT SO FAR AS ANY PARTICULAR EMPLOYEE IS CONCERNED AND THAT WHEN SO DETAILED THE DUTIES PERFORMED ARE SUBSTANTIALLY THE SAME AS WOULD BE PERFORMED BY THE EMPLOYEE IN THE NATIONAL FOREST TO WHICH HE IS OFFICIALLY ASSIGNED.

THE TIME WHEN SUCH EMPLOYEE MAY BE DETAILED--- BEING DEPENDENT UPON THE OCCURRENCE OF A SERIOUS FIRE EMERGENCY IN A NATIONAL FOREST OTHER THAN THE ONE IN WHICH HE IS OFFICIALLY STATIONED--- MAY NOT BE DETERMINED IN ADVANCE. MOREOVER, THE DURATION OF SUCH DETAILS IS DEPENDENT UPON THE EXTENT OF THE EMERGENCY AND HOW QUICKLY AND EFFECTIVELY THE FIRE CAN BE ELIMINATED OR CONTROLLED. HENCE, IT IS REASONABLE TO CONCLUDE THAT THE OVERTIME WORK PERFORMED WHILE ON SUCH DETAIL IS IRREGULAR AND UNSCHEDULED WITHIN THE MEANING OF SECTIONS 25.261 AND 25.273 (B) OF THE FEDERAL EMPLOYEES PAY REGULATIONS.

WITH SOME POSSIBLE QUALIFICATION AS TO THE FULL REQUIREMENTS OF SECTION 25.263 (C), AN EMPLOYEE DETAILED TO ANOTHER NATIONAL FOREST BECAUSE OF A FIRE EMERGENCY IS IN NO DIFFERENT STATUS SO FAR AS CONCERNS THE APPLICATION OF THE PREMIUM PAY PROVISION OF THE FEDERAL EMPLOYEES PAY REGULATIONS THAN IF HE WERE PERFORMING FIREFIGHTING DUTIES IN THE NATIONAL FOREST IN WHICH HIS OFFICIAL STATION IS SITUATED. SECTION 25.263 (C) SAYS THE EMPLOYEE "GENERALLY IS RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY.' THE USE OF THE WORD "GENERALLY" IN SUCH PROVISION IS A RECOGNITION OF THE FACT THAT LIMITED EXCEPTIONS ARE CONTEMPLATED TO THE REQUIREMENTS OF THAT SECTION. THE TEMPORARY PERIODS AN EMPLOYEE MAY BE DETAILED TO ANOTHER NATIONAL FOREST AND IS UNDER THE GENERAL SUPERVISION OF AN OFFICER OR EMPLOYEE OFFICIALLY STATIONED IN THE FOREST TO WHICH DETAILED REASONABLY MAY BE CONSIDERED AS AN EXCEPTION TO THE GENERAL REQUIREMENT IN SECTION 25.263 (C). HENCE, DURING THE BRIEF PERIODS OF SUCH DETAILS IT WOULD BE PROPER TO CONTINUE TO PAY THE EMPLOYEES THE 15 PERCENT PREMIUM COMPENSATION UNDER THE AUTHORITY OF SECTION 401 (2). IT FOLLOWS THAT WHILE AN EMPLOYEE IS RECEIVING THE SAID 15 PERCENT PREMIUM COMPENSATION, SECTIONS 25.261 AND 25.273 (B) OF THE FEDERAL EMPLOYEES PAY REGULATIONS WOULD PRECLUDE PAYMENT TO THE EMPLOYEE FOR IRREGULAR AND UNSCHEDULED OVERTIME DUTIES UNDER ANY OTHER AUTHORITY.

THE FIRST QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE WHICH RENDERS UNNECESSARY A REPLY TO THE SECOND QUESTION.