B-159153, MAY 26, 1966

B-159153: May 26, 1966

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TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES: THIS IS IN REPLY TO YOUR LETTER OF APRIL 21. HAYES BE REEXAMINED TO ASCERTAIN THE CORRECT DATE UPON WHICH IT WAS FIRST FILED IN OUR OFFICE AND ALSO TO RECONSIDER THE CLAIM UPON THE MERITS IN LIGHT OF THE ADDITIONAL EVIDENCE SUBMITTED. OUR RECORDS SHOW THAT THE CLAIM IN QUESTION WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 20. WHICH DISCUSSES PAYROLL PRACTICES AND POLICIES FOR NIGHT DIFFERENTIAL PAY IS NOT A LETTER THAT ORIGINATED IN THIS OFFICE BUT APPARENTLY WAS WRITTEN BY THE ACCOUNTING OFFICE IN THE SHIPYARD. IS BARRED AS NOT HAVING BEEN RECEIVED HERE WITHIN THE TEN-YEAR LIMITATION PERIOD APPLICABLE TO CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE. 54 STAT. 1061.

B-159153, MAY 26, 1966

TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 21, 1966, IN BEHALF OF MR. PATRICK HAYES RELATIVE TO OFFICE SETTLEMENT OF DECEMBER 14, 1965, Z 2301904, DISALLOWING HIS CLAIM FOR NIGHT DIFFERENTIAL PAY FOR THE PERIOD MARCH 1950 THROUGH JANUARY 1, 1957, WHILE EMPLOYED IN AN UNGRADED POSITION UNDER THE MILITARY SEA TRANSPORTATION SERVICE, DEPARTMENT OF THE NAVY, AT THE NEW YORK NAVAL SHIPYARD (NYNS).

YOU ASK THAT THE CLAIM OF MR. HAYES BE REEXAMINED TO ASCERTAIN THE CORRECT DATE UPON WHICH IT WAS FIRST FILED IN OUR OFFICE AND ALSO TO RECONSIDER THE CLAIM UPON THE MERITS IN LIGHT OF THE ADDITIONAL EVIDENCE SUBMITTED.

OUR RECORDS SHOW THAT THE CLAIM IN QUESTION WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 20, 1965, HAVING BEEN FORWARDED HERE BY YOUR LETTER DATED SEPTEMBER 17, 1965. AN EARLIER UNSIGNED LETTER WRITTEN ON NEW YORK NAVAL SHIPYARD LETTERHEAD FROM GENERAL ACCOUNTING OFFICE TO CLAIMS DIVISION DATED SEPTEMBER 3, 1964, WHICH DISCUSSES PAYROLL PRACTICES AND POLICIES FOR NIGHT DIFFERENTIAL PAY IS NOT A LETTER THAT ORIGINATED IN THIS OFFICE BUT APPARENTLY WAS WRITTEN BY THE ACCOUNTING OFFICE IN THE SHIPYARD. OUR REEXAMINATION OF THE MATTER CONFIRMS OUR EARLIER DETERMINATION THAT A CLAIM FOR ANY PERIOD PRIOR TO SEPTEMBER 20, 1955, IS BARRED AS NOT HAVING BEEN RECEIVED HERE WITHIN THE TEN-YEAR LIMITATION PERIOD APPLICABLE TO CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE. 54 STAT. 1061.

DEPARTMENT OF THE NAVY RECORDS REVEAL THAT FOR THE PERIOD SEPTEMBER 20, 1955, TO JANUARY 1, 1957, MR. HAYES WAS ASSIGNED TO A REGULAR 0800 1630 DAY SHIFT IN THE MAINTENANCE AND REPAIR SHOP AT THE NYNS AND THAT THE SHOP HAD NO REGULARLY SCHEDULED NIGHT SHIFT. IN EACH OF THE YEARS 1955 AND 1956 MR. HAYES WORKED OCCASIONAL IRREGULARLY SCHEDULED OVERTIME, SOME OF IT ON SATURDAYS AND SUNDAYS. FOR THIS WORK HE WAS COMPENSATED AT THE OVERTIME RATE.

WITH RESPECT TO ENTITLEMENT TO NIGHT DIFFERENTIAL, NCPI 85.5-4 (EFFECTIVE OCTOBER 22, 1954, UNTIL JANUARY 31, 1958) PROVIDED AS FOLLOWS:

"NIGHT WORK PAY, UNGRADED EMPLOYEE.--- NIGHT WORK PAY IS ALSO CALLED NIGHT PAY OR NIGHT SHIFT DIFFERENTIAL. TO BE ENTITLED TO NIGHT WORK PAY, AN UNGRADED EMPLOYEE MUST BE ASSIGNED TO REGULARLY SCHEDULED WORK WHICH INCLUDES WORK OF ONE HOUR OR MORE OF WORK BETWEEN THE HOURS 1800 (6:00 P.M.) AND 0700 (7:00 A.M.). THE ASSIGNMENT MAY BE FORMAL OR INFORMAL, TEMPORARY OR REGULAR. THE ASSIGNMENT MUST, HOWEVER, BE TO REGULARLY SCHEDULED NIGHT WORK.'

IN DEFINING "REGULARLY SCHEDULED WORK" AS BEING WITHIN OR OUTSIDE THE BASIC WORKWEEK AND NOT AS NECESSARILY RECURRING NCPI 85.5-1C (SAME DATE AS ABOVE) POINTS OUT THAT "IRREGULAR OR OCCASIONAL OVERTIME WORK IS NOT REGULARLY SCHEDULED WORK AND A DAY SHIFT EMPLOYEE WHO WORKS SUCH OVERTIME INTO THE NIGHT HOURS IS NOT ENTITLED TO NIGHT WORK PAY.'

SINCE THE WORK MR. HAYES PERFORMED BETWEEN THE HOURS OF 6 P.M. AND 7 A.M. WAS IRREGULAR OR OCCASIONAL OVERTIME WORK IT DOES NOT MEET THE STANDARD OF REGULARLY SCHEDULED WORK WITHIN THE MEANING OF NCPI 85.5. ACCORDINGLY, THERE IS NO ENTITLEMENT ON MR. HAYES' PART TO NIGHT DIFFERENTIAL PAY FOR THE PERIOD IN QUESTION.

THE LETTER IN THE RECORD OF MR. ZANER, INDUSTRIAL RELATIONS OFFICER, NYNS, DATED MAY 28, 1964, TO AMERICAN FEDERATION OF TECHNICAL ENGINEERS, LOCAL 191, REGARDING ENTITLEMENT TO NIGHT WORK PAY PRIOR TO FEBRUARY 1958 MISINTERPRETS THE CONTROLLING REGULATION (NCPI 85.5) WHEN IT CONSTRUES THE REGULATION AS PERMITTING THE PAYMENT OF NIGHT DIFFERENTIAL TO UNGRADED EMPLOYEES FOR ANY HOURS OF WORK BETWEEN 6 P.M. AND 7 A.M. SUCH LETTER IS INCONSISTENT WITH THE PLAIN LANGUAGE OF THE REGULATION AND IS INEFFECTIVE TO REMOVE THE REQUIREMENT IN THE REGULATION THAT NIGHT WORK BE ,REGULARLY SCHEDULED.'

FOR THE FOREGOING REASONS OUR PRIOR SETTLEMENT MUST BE AND IS SUSTAINED.