B-159040, JUL. 12, 1966

B-159040, JUL. 12, 1966

TO COMPTROLLER, DEPARTMENT OF THE NAVY:

ON APRIL 5, 1966, YOU FORWARDED A REQUEST FOR OUR DECISION FROM THE COMMANDER, PUGET SOUND NAVAL SHIPYARD, AS TO WHETHER A PAYROLL VOUCHER FOR $16.11, COVERING PAYMENT OF NIGHT DIFFERENTIAL TO RUSSELL J. WARREN, AN EMPLOYEE OF THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, MAY BE PROCESSED FOR PAYMENT.

WE UNDERSTAND THAT SOME 40 CLASSIFICATION ACT EMPLOYEES AT THE SHIPYARD SERVING IN ENGINEER AND TECHNICAL POSITIONS IN THE TEST BRANCH, DESIGN DIVISION, INCLUDING MR. WARREN, ARE REQUIRED TO REPORT FOR TESTS OCCURRING OUTSIDE THEIR REGULARLY SCHEDULED TOURS OF DUTY OF 7:40 A.M. TO 4:20 P.M. YOU ASK WHETHER THIS WORK MAY BE CONSIDERED TO BE "REGULARLY SCHEDULED" NIGHT WORK, AS DEFINED IN THE NAVY REGULATIONS AND DECISIONS OF THIS OFFICE, FOR WHICH NIGHT DIFFERENTIAL COMPENSATION MAY BE PAID.

SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, AS AMENDED, 5 U.S.C. 921, PROVIDES THAT ANY REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. SHALL BE CONSIDERED NIGHT WORK, AND THAT ANY EMPLOYEE PERFORMING SUCH WORK SHALL BE COMPENSATED FOR SUCH WORK AT HIS RATE OF BASIC COMPENSATION PLUS PREMIUM COMPENSATION AMOUNTING TO 10 PERCENTUM OF SUCH RATE.

THE DEPARTMENT OF THE NAVY CIVILIAN PERSONNEL INSTRUCTION, NCPI, 610.5-3, PROVIDES THAT NIGHT DIFFERENTIAL PAY IS PAYABLE TO GRADED EMPLOYEES ONLY FOR REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. NCPI 610.1-4H DEFINES "REGULAR" AS MEANING ACCORDING TO THE RULE AND RECURRING. NCPI 610.1-4H (5) PROVIDES THAT TO BE REGULARLY SCHEDULED, WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. MUST BE SCHEDULED BY COMPETENT AUTHORITY PRIOR TO THE BEGINNING OF THE ADMINISTRATIVE WORKWEEK TO CONTINUE FOR AT LEAST TWO CONSECUTIVE WORKWEEKS, OR FOR THREE DAYS OF EVERY OTHER WORKWEEK. NCPI 610.2-2A PROVIDES THAT THE DAYS AND SHIFT HOURS OF AN EMPLOYEE'S BASIC WORKWEEK SHALL NOT BE CHANGED WITHOUT NOTICE TO THE EMPLOYEE AT LEAST THREE CALENDAR DAYS BEFORE THE FIRST ADMINISTRATIVE WORKWEEK AFFECTED BY THE CHANGE. NCPI 610.2-2C PROVIDES THAT SHIFT HOURS, BUT NOT DAYS OF WORK, MAY BE CHANGED WITHOUT THREE-DAY ADVANCE NOTICE WHEN THE JOB OPERATIONS ARE OF SUCH A NATURE WHICH REQUIRES THAT SHIFT HOURS BE ADAPTED TO UNPREDICTABLE HOURS, SUCH AS THE CASES OF SHIP DOCKINGS, LOADINGS AND UNLOADINGS.

THE TESTS IN QUESTION HERE ARE PERFORMED IN PART BETWEEN THE HOURS OF 6 P.M. AND 6 A.M., AND RELATE TO THE INSTALLING OR REPAIRING OF ELECTRICAL, ELECTRONIC, VENTILATING, OR MAIN PROPULSION EQUIPMENT. THEY ARE USUALLY OF ONE OR TWO DAYS DURATION AND REQUIRE THE TEMPORARY CHANGING OF THE SHIFT HOURS OF THE EMPLOYEES. THIS NIGHT WORK IS REQUIRED EVERY MONTH OF THE YEAR. WHILE THE NIGHT TESTS ARE REGULARLY REQUIRED, THEY ARE USUALLY NOT PREDICTABLE. BECAUSE OF THE NATURE OF THE WORK, GIVING ADVANCE NOTICE OF SHIFT CHANGES IS NOT ALWAYS POSSIBLE, AND, FOR THIS REASON, THE SITUATION HAS BEEN CONSIDERED TO COME WITHIN THE EXCEPTION FOR CHANGING SHIFTS WITHOUT THREE DAYS NOTICE SPECIFIED IN NCPI 610.2-2C. HOWEVER, NIGHT DIFFERENTIAL COMPENSATION HAS NOT BEEN PAID ON THE BASIS THAT THE REQUIREMENT OF "REGULARLY SCHEDULED" HAS NOT BEEN MET.

WE HELD IN 40 COMP. GEN. 397 THAT TO 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. ALSO, IN 41 COMP. GEN. 8 WE HELD THAT NIGHT DIFFERENTIAL WAS PAYABLE TO SECURITY CARRIERS FOR NIGHT WORK WHICH COULD NOT BE PRECISELY SCHEDULED IN ADVANCE, IT APPEARING THAT THE NIGHT WORK WAS AN INHERENT REQUIREMENT OF THE EMPLOYMENT AND RECURRED REGULARLY ALTHOUGH NOT ACCORDING TO A FIXED HOURS- OF-WORK PATTERN. TO THE SAME EFFECT SEE 42 COMP. GEN. 326. OUR VIEW IS THAT THE WORKING SITUATION OF THE EMPLOYEES HERE INVOLVED IS COMPARABLE TO THE WORKING ARRANGEMENTS OF THE EMPLOYEES INVOLVED IN THE ABOVE-CITED DECISIONS. ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PROCESSED FOR PAYMENT IF OTHERWISE CORRECT.