B-160611, JAN. 11, 1967

B-160611: Jan 11, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THAT YOU DO HAVE BEFORE YOU FOR CONSIDERATION THE CLAIM OF THE EMPLOYEE INVOLVED FOR NIGHT DIFFERENTIAL PAY AND OUR DECISION WILL BE PREDICATED UPON THAT ASSUMPTION. WHO IS AN ELECTRONIC TECHNICIAN AND WHO NORMALLY IS NOT SCHEDULED FOR NIGHT DUTY. WAS CHANGED. YOU SAY THAT HE WAS RESCHEDULED TO A NIGHT SHIFT TO SERVE AS A DRIVER OF A GOVERNMENT VEHICLE TRANSPORTING EMPLOYEES FROM THEIR RESIDENCES TO THE WEATHER BUREAU OFFICE. ONE OF THE ATTACHMENTS TO YOUR LETTER READS IN PART AS FOLLOWS: "* * * ALL SCHEDULES THEN IN EFFECT FOR BOTH ROTATING AND NONROTATING PERSONNEL WERE COMPLETELY DISREGARDED AND NEW SCHEDULES WERE PROMULGATED. RICHARDSON WOULD NORMALLY HAVE WORKED FROM 0900 - 1730 MONDAY THROUGH FRIDAY.

B-160611, JAN. 11, 1967

TO AUTHORIZED CERTIFYING OFFICER:

BY LETTER OF DECEMBER 9, 1966, REFERENCE WFE511, YOU REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF THE PAYMENT OF NIGHT DIFFERENTIAL PAY TO AN EMPLOYEE OF THE WEATHER BUREAU OFFICE, NEW YORK, NEW YORK,UNDER THE FOLLOWING FACTS AND CIRCUMSTANCES.

WHILE NO VOUCHER ACCOMPANIED YOUR REQUEST FOR DECISION IT APPEARS, IN FACT, THAT YOU DO HAVE BEFORE YOU FOR CONSIDERATION THE CLAIM OF THE EMPLOYEE INVOLVED FOR NIGHT DIFFERENTIAL PAY AND OUR DECISION WILL BE PREDICATED UPON THAT ASSUMPTION.

YOU POINT OUT IN YOUR LETTER THAT DUE TO THE NEW YORK CITY TRANSIT STRIKE THE WORK SCHEDULE OF THE EMPLOYEE INVOLVED, WHO IS AN ELECTRONIC TECHNICIAN AND WHO NORMALLY IS NOT SCHEDULED FOR NIGHT DUTY, WAS CHANGED. YOU SAY THAT HE WAS RESCHEDULED TO A NIGHT SHIFT TO SERVE AS A DRIVER OF A GOVERNMENT VEHICLE TRANSPORTING EMPLOYEES FROM THEIR RESIDENCES TO THE WEATHER BUREAU OFFICE.

ONE OF THE ATTACHMENTS TO YOUR LETTER READS IN PART AS FOLLOWS:

"* * * ALL SCHEDULES THEN IN EFFECT FOR BOTH ROTATING AND NONROTATING PERSONNEL WERE COMPLETELY DISREGARDED AND NEW SCHEDULES WERE PROMULGATED.

"WHEREAS MR. RICHARDSON WOULD NORMALLY HAVE WORKED FROM 0900 - 1730 MONDAY THROUGH FRIDAY, DURING THIS PERIOD HE ACTUALLY WORKED THE FOLLOWING IN ACCORDANCE WITH THE SCHEDULE ADOPTED:

"MONDAY, JANUARY 3 - 1100 - 0100

TUESDAY, JANUARY 4 - 0800 - 1630

WEDNESDAY, JANUARY 5 - 0500 - 2400

THURSDAY, JANUARY 6 - 1200 - 2400

SATURDAY, JANUARY 8 - 2100 - 0700

SUNDAY, JANUARY 9 - 0500 - 1500

MONDAY, JANUARY 10 - 1200 - 2400

TUESDAY, JANUARY 11 - 1200 - 2400

THURSDAY, JANUARY 13 - 0800 - 1630

FRIDAY, JANUARY 14 - 0800 - 1630

"ONCE THE EMERGENCY SCHEDULE WAS PUT INTO EFFECT IT WAS THE INTENTION THAT IT BE MAINTAINED FOR THE DURATION OF THE STRIKE. IN THIS SENSE IT BECAME A REGULAR, EXTENDED SCHEDULE AND MR. RICHARDSON ROTATED THROUGH IT.' IN THE NEXT TO LAST PARAGRAPH OF YOUR LETTER YOU SAY THAT:

"* * * PAYMENT WAS REFUSED ON THE GROUNDS THAT THE NIGHT WORK WAS NOT SCHEDULED IN ADVANCE AND THAT THE WORK TO BE PERFORMED WAS NOT REGULARLY SCHEDULED. FURTHER, THAT THE NIGHT WORK WAS FOR AN INDEFINITE PERIOD WHICH DID NOT COVER A MINIMUM OF TWO CONSECUTIVE WORK WEEKS.'

FINALLY, YOU INDICATE THAT YOUR REQUEST FOR DECISION WAS PROMPTED,IN PART AT LEAST, BY THE HOLDING IN OUR DECISION OF MARCH 19, 1957, 36 COMP. GEN. 657.

THE DECISION 36 COMP. GEN. 657 CITED IN YOUR LETTER WAS MODIFIED BY A SUBSEQUENT DECISION OF OUR OFFICE WHICH IS PUBLISHED AS 40 COMP. GEN. 397. IN THE LATTER DECISION WE POINTED OUT 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. 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 39 COMP. GEN. 73.'

OUR UNDERSTANDING IS--- BASED UPON THE INFORMATION IN YOUR LETTER AND THE ACCOMPANYING ATTACHMENT--- THAT THE NIGHT WORK OF THE EMPLOYEE WAS SCHEDULED IN ADVANCE TO RECUR AFTER SPECIFIED INTERVALS AND DID IN FACT RECUR. UNDER SUCH CIRCUMSTANCES WE ARE OF THE OPINION THAT THE NIGHT WORK PERFORMED BY THE CLAIMANT WOULD MEET THE CRITERIA FOR "REGULARLY SCHEDULED WORK" AS SET FORTH IN 40 COMP. GEN. 397. ACCORDINGLY, WE WOULD HAVE NO OBJECTION TO YOUR CERTIFYING FOR PAYMENT A PROPERLY PREPARED VOUCHER COVERING THE NIGHT DIFFERENTIAL PAY IN QUESTION.