B-160391, DEC. 21, 1966

B-160391: Dec 21, 1966

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THE RECORD SHOWS THAT IN 1965 IT WAS DETERMINED THAT A SERIES OF ALTERATIONS WERE NECESSARY AT THE GRAND COULEE DAM POWER PLANT. ALTHOUGH THE WORK WAS OF THE TYPE NORMALLY CONTRACTED OUT. IT WAS CONSIDERED INFEASIBLE TO ENTER INTO A CONTRACT SINCE IT WAS ESSENTIAL THAT THE POWER PLANT BE MAINTAINED AT MAXIMUM OPERATING EFFICIENCY DURING THE ALTERATIONS. THE REGULAR MAINTENANCE WORKERS HAVE CONTINUED TO RECEIVE MAINTENANCE WAGES. WHEREAS CONSTRUCTION WAGES ARE PAID TO THE TRADESMEN UNDER TEMPORARY APPOINTMENTS. THESE EMPLOYEES ARE RECRUITED FROM THE LOCAL CONSTRUCTION WORKING FORCE. THE EMPLOYEES IN THE INSTANT CASE WERE HIRED ON A TEMPORARY BASIS AT HOURLY RATES OF COMPENSATION FOR THE PURPOSE OF MAKING A SERIES OF ALTERATIONS AT THE POWER PLANT.

B-160391, DEC. 21, 1966

TO THE SECRETARY OF THE INTERIOR:

ON NOVEMBER 3, 1966, THE DEPUTY ASSISTANT SECRETARY, MR. GEORGE E. ROBINSON, REQUESTED OUR DECISION AS TO THE PROPRIETY OF CREDITING ANNUAL AND SICK LEAVE TO SEVERAL TEMPORARY EMPLOYEES BEING PAID CONSTRUCTION WAGE RATES ON THE BUREAU OF RECLAMATION'S COLUMBIA BASIN PROJECT.

THE RECORD SHOWS THAT IN 1965 IT WAS DETERMINED THAT A SERIES OF ALTERATIONS WERE NECESSARY AT THE GRAND COULEE DAM POWER PLANT. ALTHOUGH THE WORK WAS OF THE TYPE NORMALLY CONTRACTED OUT, IT WAS CONSIDERED INFEASIBLE TO ENTER INTO A CONTRACT SINCE IT WAS ESSENTIAL THAT THE POWER PLANT BE MAINTAINED AT MAXIMUM OPERATING EFFICIENCY DURING THE ALTERATIONS. THE BUREAU OF RECLAMATION, IN THE BEST INTEREST OF THE GOVERNMENT, SUPPLEMENTED THE REGULAR MAINTENANCE CREWS WITH TEMPORARY EMPLOYEES AS NEEDED. THE TOTAL CREW HAS PERFORMED A MIXTURE OF CONSTRUCTION AND MAINTENANCE WORK. UNDER THE ARRANGEMENT THE WORK IDENTIFIED AS CONSTRUCTION-TYPE HAS IN FACT BECOME INSEPARABLE IN SEQUENCE, IMPORTANCE, AND DEGREE FROM OVERALL MAINTENANCE.

BY AGREEMENT WITH THE COLUMBIA BASIN TRADES COUNCIL WHICH HAS EXCLUSIVE RECOGNITION RIGHTS COVERING ALL HOURLY EMPLOYEES AT THE GRAND COULEE DAM POWER PLANT, THE NUMBER OF TEMPORARY EMPLOYEES HAS BEEN MAINTAINED IN THE SAME RATIO TO THE PERMANENT MAINTENANCE FORCES AS THE EXTENT OF CONSTRUCTION ACTIVITY HAS COMPARED WITH THE MAINTENANCE WORK. BY FURTHER AGREEMENT WITH THE COUNCIL, THE REGULAR MAINTENANCE WORKERS HAVE CONTINUED TO RECEIVE MAINTENANCE WAGES, WHEREAS CONSTRUCTION WAGES ARE PAID TO THE TRADESMEN UNDER TEMPORARY APPOINTMENTS. THESE EMPLOYEES ARE RECRUITED FROM THE LOCAL CONSTRUCTION WORKING FORCE, AND THE VERY EXISTENCE OF THEIR JOBS STEMS FROM THE CONSTRUCTION WORK THEY SHARE WITH THE REGULAR MAINTENANCE WORKERS.

SECTION 202 (B) (1) (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 65 STAT. 679, EXCEPTS FROM COVERAGE OF THAT ACT "TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES.' SECTION 630.201 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PROVIDES THAT:

"/A) IN THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, THE TERM TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES MEANS EMPLOYEES HIRED ON A TEMPORARY BASIS SOLELY FOR THE PURPOSE OF WORK ON A SPECIFIC CONSTRUCTION PROJECT AND PAID AT HOURLY RATES.'

THE EMPLOYEES IN THE INSTANT CASE WERE HIRED ON A TEMPORARY BASIS AT HOURLY RATES OF COMPENSATION FOR THE PURPOSE OF MAKING A SERIES OF ALTERATIONS AT THE POWER PLANT. ALTHOUGH THEY WORKED SIDE BY SIDE WITH THE REGULAR MAINTENANCE CREW WHO WERE REQUIRED TO STAY ON THE JOB IN ORDER TO KEEP THE PLANTS OPERATING AT MAXIMUM EFFICIENCY DURING THE SERIES OF ALTERATIONS AND MAY HAVE ASSISTED THE MAINTENANCE CREW FROM TIME TO TIME NEVERTHELESS THAT DOES NOT OVERCOME THE FACT THAT THEY WERE HIRED ON A TEMPORARY HOURLY RATE BASIS SOLELY FOR THE PURPOSE OF WORK ON A SPECIFIC CONSTRUCTION PROJECT.

UNDER THE CIRCUMSTANCES, OUR OPINION IS THAT THE TERMS OF SUCH WORKERS' APPOINTMENTS ARE CONTROLLING AND CONSEQUENTLY THEY MUST BE REGARDED AS EXPRESSLY EXCLUDED FROM THE BENEFITS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED.