B-160634, FEB. 20, 1967

B-160634: Feb 20, 1967

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SECTION 405 (F) IS AS FOLLOWS: "/F) THE FIRST PARAGRAPH OF SECTION 223 OF THE INDEPENDENT OFFICE APPROPRIATION ACT. IS AMENDED BY INSERTING IMMEDIATELY BEFORE THE PERIOD AT THE END THEREOF THE FOLLOWING: "PROVIDED FURTHER. THAT EMPLOYEES SUBJECT TO THIS SECTION WHOSE REGULAR WORK SCHEDULE INCLUDES AN EIGHT-HOUR PERIOD OF SERVICE ANY PART OF WHICH IS WITHIN THE PERIOD COMMENCING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY SHALL BE PAID EXTRA COMPENSATION AT THE RATE OF 25 PERCENTUM OF HIS HOURLY RATE OF BASIC COMPENSATION FOR EACH HOUR OF WORK PERFORMED DURING THAT EIGHT-HOUR PERIOD OF SERVICE.'" YOUR DEPARTMENT'S LETTER IS IN PART AS FOLLOWS: "THE ALASKA RAILROAD NEGOTIATES WITH UNIONS REPRESENTING ITS EMPLOYEES AND FOLLOWS GENERALLY THE RAILROAD INDUSTRY'S UNION WAGE AGREEMENTS AND PAY SCALES.

B-160634, FEB. 20, 1967

TO THE SECRETARY OF THE INTERIOR:

BY LETTER DATED JANUARY 3, 1967, YOUR DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR DECISION ON SEVERAL QUESTIONS INVOLVING THE APPLICATION OF SECTION 405 (F) OF THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966, 80 STAT. 298, PUB.L. 89-504, TO CERTAIN EMPLOYEES OF THE ALASKA RAILROAD. SECTION 405 (F) IS AS FOLLOWS:

"/F) THE FIRST PARAGRAPH OF SECTION 223 OF THE INDEPENDENT OFFICE APPROPRIATION ACT, 1935, AS AMENDED (5 U.S.C. 673C), IS AMENDED BY INSERTING IMMEDIATELY BEFORE THE PERIOD AT THE END THEREOF THE FOLLOWING: "PROVIDED FURTHER, THAT EMPLOYEES SUBJECT TO THIS SECTION WHOSE REGULAR WORK SCHEDULE INCLUDES AN EIGHT-HOUR PERIOD OF SERVICE ANY PART OF WHICH IS WITHIN THE PERIOD COMMENCING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY SHALL BE PAID EXTRA COMPENSATION AT THE RATE OF 25 PERCENTUM OF HIS HOURLY RATE OF BASIC COMPENSATION FOR EACH HOUR OF WORK PERFORMED DURING THAT EIGHT-HOUR PERIOD OF SERVICE.'"

YOUR DEPARTMENT'S LETTER IS IN PART AS FOLLOWS:

"THE ALASKA RAILROAD NEGOTIATES WITH UNIONS REPRESENTING ITS EMPLOYEES AND FOLLOWS GENERALLY THE RAILROAD INDUSTRY'S UNION WAGE AGREEMENTS AND PAY SCALES. AGREEMENTS WERE NEGOTIATED BETWEEN THE UNIONS REPRESENTING EMPLOYEES OF THE ALASKA RAILROAD, TAKING INTO ACCOUNT, FOR EXAMPLE, THAT OPERATIONAL PERSONNEL SUCH AS LOCOMOTIVE ENGINEERS, LOCOMOTIVE FIREMEN, CONDUCTORS, BRAKEMEN, BAGGAGE MEN AND HOSTLERS WILL BE REQUIRED TO WORK AT NIGHT, ON SUNDAYS AND ON HOLIDAYS. CONSEQUENTLY THE AGREEMENTS WERE DESIGNED TO COMPENSATE THE EMPLOYEES APPROPRIATELY, GIVING CERTAIN BENEFITS NOT ACCORDED CERTAIN OTHER TYPES OF RAILROAD EMPLOYEES.

"THE ABOVE INDICATED SECTION (302 (F) SHOULD BE 405 (F) ( OF THE ACT OF JULY 8 (18) , 1966, DEPENDING ON ITS INTERPRETATION, MAY CREATE A COMPENSATION IMBALANCE AS BETWEEN EMPLOYEES, MAY CREATE A TELESCOPING OF BENEFITS, OR MAY MAKE CERTAIN TYPES OF SERVICES DEMANDED BY THE PUBLIC EXCESSIVELY EXPENSIVE TO FURNISH AS COMPARED TO NORMAL SERVICES. ONE OR TWO EXAMPLES WILL FOCUS ON THE PROBLEM FACED BY THE RAILROAD WITH CERTAIN CATEGORIES OF ITS PERSONNEL.

"BY UNION AGREEMENT THE RAILROAD USES A DUAL PAY SYSTEM OF COMPENSATION. LOCOMOTIVE ENGINEERS, FOR EXAMPLE, ARE PAID THE GREATER OF EITHER MILEAGE RUN OR HOURS WORKED. OVERTIME HOURS IN EXCESS OF EIGHT (8) HOURS PER DAY OR FORTY (40) HOURS PER WEEK ARE COMPUTED AT NOTLESS THAN ONE AND ONE-HALF OF THE BASIC RATE OF COMPENSATION. THE NORMAL REST DAYS FOR AN INDIVIDUAL MAY OR MAY NOT FALL ON SUNDAY.

"UNDER THIS DUAL PAY SYSTEM, IF A LOCOMOTIVE ENGINEER TAKES HIS NORMAL NON-REST DAY ALASKA RAILROAD SUNDAY SCHEDULED RUN TO FAIRBANKS, ALASKA, HE RUNS 356 MILES ON SATURDAY AND 356 MILES ON SUNDAY. ON MONDAY HE WILL MAKE A ROUND TRIP TO SEWARD OF 229 MILES, OR A TOTAL OF 941 MILES. RECEIVES A COMPENSATION OF $322.18 FOR 941 MILES RUN, AND THE TOTAL NUMBER OF DAYS WORKED DURING THE WEEK IS ONLY THREE (3). UNION AGREEMENTS LIMIT THE NUMBER OF MILES PER WEEK WHICH CAN BE RUN TO 950 PER EMPLOYEE. THEREFORE, THE REMAINING FOUR (4) DAYS OF THE WEEK, IN THE EXAMPLE STATED, THE ENGINEER HAS FREE AND CAN REST OR EVEN BE EMPLOYED BY SOME PRIVATE CONCERN.

"THE TIME TO FAIRBANKS NORMALLY TAKES TWELVE (12) HOURS EACH WAY, CONSEQUENTLY, IF AN ENGINEER'S COMPENSATION WERE COMPUTED ON AN EIGHT (8) HOUR DAY, HE WOULD HAVE WORKED TWO EIGHT (8) HOURS DAYS, SATURDAY AND SUNDAY, PLUS TWO (2) OVERTIME PERIODS EACH OF FOUR (4) HOURS DURATION, AND ON MONDAY HE WOULD HAVE WORKED ONE EIGHT (8) HOUR DAY PLUS ONE OVERTIME PERIOD OF ONE (1) HOUR AND FORTY-FIVE (45) MINUTES, OR A TOTAL OF THIRTY THREE AND THREE QUARTER (33 3/4 ( HOURS IN THAT WEEK. ALASKA RAILROAD COMPENSATION AT THE LOCOMOTIVE ENGINEER RATE FOR A THREE (3) DAY PLUS THREE (3) OVERTIME PERIODS RATE WOULD BE $157.45 FOR THE TIME ACTUALLY WORKED. THE MINIMUM FORTY (40) HOUR WEEK SET BY LAW AND UNION AGREEMENT WOULD REQUIRE COMPENSATION OF $163.05. SAID COMPENSATION FOR A FULL FORTY (40) HOUR WEEK IS NOT USED BECAUSE THE MILEAGE COMPENSATION OF $322.18 FOR 941 MILES RUN IS GREATER AND IS PAID. WEEKLY COMPENSATION AT THIS RATE UNDER THESE CIRCUMSTANCES WOULD TOTAL $16,753.36 PER ANNUM.

"IF THE WORD "SUNDAY" UNDER THE REFERENCED SECTION OF THE ACT OF JULY 8 (18), 1966, MEANS ,SUNDAY" AND NOT "REST DAY," THEN THE HOURS WORKED AND OVERTIME FIGURES OF $157.45 WOULD BE INCREASED TO $165.00 AND THE FORTY (40) HOUR WORK WEEK FIGURE OF $163.05, ABOVE, WOULD BE INCREASED TO $171.20.

"THE QUESTION HAS BEEN RAISED AS TO WHETHER OR NOT THE SUNDAY PROVISION OF THE SAID SECTION OF THE ACT OF JULY 8 (18), 1966 APPLIES ALSO TO MILES RUN. IF IT DOES, THE FIGURE OF $322.18 WOULD BE INCREASED TO $352.67. WEEKLY COMPENSATION AT THIS RATE AND UNDER THESE CONDITIONS WOULD TOTAL $18,338.84 PER ANNUM.

"UNION AGREEMENTS WERE NEGOTIATED WITH A DAY OF REST BEING A DAY OF REST, NOT A PARTICULAR DAY OF THE WEEK. IF AN ENGINEER IS CALLED OUT ON HIS REST DAY HE RECEIVES ONE FULL EXTRA DAY OF COMPENSATION, NOT JUST TIME AND ONE HALF.

"THERE ARE ALSO OTHER ARBITRARIES AND PENALTIES PROVIDED FOR IN THE UNION AGREEMENTS AS THE CIRCUMSTANCES ARISE WHICH WOULD REQUIRE THE RAILROAD TO PAY COMPENSATION IN ADDITION TO THAT COMPUTED ABOVE UNDER THE DUAL PAY SYSTEM.

"UNION AGREEMENTS FURTHER ESTABLISH A MINIMUM GUARANTEED NUMBER OF MILES PER WEEK, AND IF THE RUN OF A ROAD ENGINEER IS LESS THAN 600 MILES, THE RAILROAD MUST STILL COMPENSATE FOR 600 MILES REGARDLESS, OR A TOTAL OF $195.66 PER WEEK. IN OTHER WORDS, ASIDE FROM THE SUNDAY PAY QUESTION, THE MINIMUM PAY WHICH A ROAD LOCOMOTIVE ENGINEER CAN NOW RECEIVE IF HE IS AVAILABLE FOR WORK, REGARDLESS OF HOW FEW DAYS HE RUNS, IS $195.66 INSTEAD OF THE MINIMUM FORTY (40) HOUR WEEK OF COMPENSATION OF $163.05. IF THE REFERENCED SECTION OF THE ACT OF JULY 8 (18), 1966 APPLIES TO MILEAGE, THE MINIMUM AMOUNT OF THE INCREASE ADDED TO THIS TOTAL WOULD BE $203.81 PER WEEK, BUT WOULD UNDER CERTAIN CIRCUMSTANCES BE CONSIDERABLY GREATER ON LESS THAN 600 MILES RUN.

"IF UNDER THE UNION AGREEMENT A LOCOMOTIVE ENGINEER'S NORMAL REST DAY FALLS ON SUNDAY AND FOR SOME REASON HE IS CALLED TO WORK, THE QUESTION ARISES AS TO WHETHER THE RAILROAD IS NOT ONLY REQUIRED TO PAY ONE FULL EXTRA DAY'S COMPENSATION UNDER THE UNION AGREEMENTS, BUT AN ADDITIONAL 25 PERCENTUM OF BOTH HIS NORMAL AND EXTRA DAY'S COMPENSATION UNDER THE REFERENCED SECTION OF THE ACT OF JULY 8 (18), 1966.

"IF MILES RUN IS SUBJECT TO SUNDAY PAY, LOCOMOTIVE ENGINEERS ON A FAST SUNDAY TRAIN WILL RECEIVE MORE SUNDAY COMPENSATION THAN A LOCOMOTIVE ENGINEER ON A SLOW SUNDAY TRAIN.

"IF SUNDAY PAY ONLY APPLIES TO HOURS, A LOCOMOTIVE ENGINEER ON A SLOW RUN IN WHICH THE HOURLY PAY EXCEEDS THE MILES RUN WOULD RECEIVE SUNDAY PAY, WHEREAS AN ENGINEER ON A SLIGHTLY REVERSED SITUATION WOULD NOT.

"A LOCOMOTIVE ENGINEER IN YARD WORK OR PART TIME YARD WORK WOULD HAVE HIS COMPENSATION AFFECTED IN STILL A DIFFERENT WAY, AND IF SUNDAY PAY APPLIES ONLY TO HOURS WORKED HE MAY RECEIVE SUNDAY PAY WHEREAS A ROAD LOCOMOTIVE ENGINEER MAY OR MAY NOT, DEPENDING UPON THE CIRCUMSTANCES.

"OTHER CATEGORIES OF PERSONNEL ARE SIMILARLY AFFECTED IN A VARIETY OF WAYS.'

SECTION 405 (F) AMENDED 5 U.S.C. 673C WHICH PROVISION IT IS ADMINISTRATIVELY ACKNOWLEDGED APPLIED TO THE ALASKA RAILROAD. IT IS POINTED OUT THAT SUCH APPLICATION HAS BEEN AFFIRMED BY THE COURT OF CLAIMS IN THE FOLLOWING CASES: POGGAS V. UNITED STATES, 118 CT.CL. 385; SAMPLES V. UNITED STATES, 135 CT.CL. 548; ID. 945; PARKS V. UNITED STATES, 141 CT.CL. 415. WE AGREE THAT THE AMENDMENT MADE BY SECTION 405 (F) WOULD APPLY TO EMPLOYEES OF THE ALASKA RAILROAD WHO OTHERWISE QUALIFY UNDER ITS TERMS.

THE SPECIFIC QUESTIONS PRESENTED ARE HEREINAFTER RESTATED AND ANSWERED IN THE ORDER PRESENTED:

"/1) DOES THE REFERENCED ACT MAKE MANDATORY THE PAYMENT OF EXTRA COMPENSATION TO ALL OPERATING AND ON-OPERATING EMPLOYEES OF THE ALASKA RAILROAD AT THE RATE OF 25 PERCENT OF THE HOURLY RATE OF BASIC COMPENSATION FOR EACH HOUR OF WORK PERFORMED, REGARDLESS OF THE TERMS OF THE UNION NEGOTIATED WAGE AGREEMENT?

WE UNDERSTAND THAT THIS QUESTION RELATES ONLY TO EMPLOYEES RECEIVING A BASIC HOURLY RATE OF COMPENSATION. UPON THIS UNDERSTANDING THE QUESTION IS ANSWERED IN THE AFFIRMATIVE INSOFAR AS IT PERTAINS TO EMPLOYEES WHO ARE REGULARLY SCHEDULED TO WORK FULL-TIME 40 HOURS PER WEEK AND WHOSE REGULAR WORK SCHEDULE INCLUDES A PERIOD OF SERVICE ANY PART OF WHICH FALLS BETWEEN MIDNIGHT SATURDAY AND MIDNIGHT SUNDAY. HOWEVER, SECTION 405 (F) HAS NO APPLICATION TO EMPLOYEES WHO WORK LESS THAN FULL-TIME. SEE DECISION B- 159950, OCTOBER 19, 1966, COPY ENCLOSED. ALSO, THE PREMIUM PAY AUTHORIZED BY THE ABOVE-QUOTED PROVISO IS NOT PAYABLE DURING PERIODS OF LEAVES OF ABSENCE. B-159779, AUGUST 22,

"/2) WHERE UNDER A UNION AGREEMENT AN EMPLOYEE TAKES HIS REST

" (2) WHERE UNDER A UNION AGREEMENT AN EMPLOYEE TAKES HIS REST DAY ON A DIFFERENT DAY OF THE WEEK THAN SUNDAY, DOES SUNDAY MEAN A SPECIFIED DAY OF THE WEEK, OR CAN SUNDAY MEAN AN EMPLOYEE'S ,REST DAY? " "

SUNDAY MEANS THAT 24-HOUR PERIOD COMMENCING ON MIDNIGHT OF THE CALENDAR DAY SATURDAY AND ENDING ON MIDNIGHT OF THE CALENDAR DAY SUNDAY. SEE DECISION OF FEBRUARY 6, 1967, B-160635, COPY HEREWITH.

"/3) WHERE THE DUAL PAY SYSTEM IS USED, MUST THE 25 PERCENT EXTRA COMPENSATION BE APPLIED TO MILES RUN, OR DOES IT APPLY ONLY TO HOURS WORKED?

"/A) IF THE ANSWER TO QUESTION NUMBER 3 IS THAT THE 25 PERCENT APPLIES ONLY TO HOURS WORKED, WOULD SAID 25 PERCENT EXTRA COMPENSATION BE ADDED TO THE COMPENSATION FOR MILES RUN, OR WOULD IT BE IGNORED WHERE COMPENSATION FOR MILES RUN EXCEEDS THAT FOR HOURS WORKED PLUS 25 PERCENT EXTRA COMPENSATION?

UNDER THE EXPRESS LANGUAGE OF THE QUOTED STATUTE, 25 PERCENT SUNDAY PREMIUM PAY IS AUTHORIZED ONLY IN THE CASE OF AN EMPLOYEE RECEIVING AN HOURLY RATE OF BASIC COMPENSATION. IT HAS NO APPLICATION TO COMPENSATION SET ON A MILEAGE BASIS, AND IN COMPUTING AN EMPLOYEE'S COMPENSATION ON SUCH BASIS THE PREMIUM PAY FOR SUNDAY WORK UNDER SECTION 405 (F) IS NOT FOR CONSIDERATION.

"/4) WHEN SUNDAY FALLS ON THE EMPLOYEE'S REST DAY, AND HE IS CALLED TO WORK, DOES THE 25 PERCENT EXTRA COMPENSATION APPLY TO BOTH THE REGULAR PAY AND THE PENALTY PAY? IF, FOR EXAMPLE, THE UNION AGREEMENTS REQUIRE PAYMENT OF ONE EXTRA DAY OF COMPENSATION FOR BEING CALLED OUT ON A REST DAY, WOULD THE 25 PERCENT APPLY TO BOTH THE REGULAR DAY AND THE EXTRA DAY'S COMPENSATION?

THE QUOTED STATUTE BY EXPRESS TERMS PROVIDES THAT THE EXTRA COMPENSATION SHALL BE AT THE RATE OF 25 PERCENTUM OF THE "HOURLY RATE OF BASIC COMPENSATION.' QUESTION (4) IS, THEREFORE, ANSWERED IN THE NEGATIVE.

"/5) WHERE CERTAIN SUPERVISORY PERSONNEL ARE EMPLOYED BY THE ALASKA RAILROAD AND COMPENSATED NOT ON AN HOURLY BASIS BUT ON A SUM CERTAIN PER ANNUM BASIS, REGARDLESS OF WHETHER OR NOT THEY WORK ON SUNDAY, HOLIDAYS, OR NIGHTS, IS THE 25 PERCENT EXTRA COMPENSATION TO BE ADDED FOR SUNDAY WORK, AND IF SO, HOW IS IT TO BE COMPUTED?

WE UNDERSTAND THAT THIS QUESTION PRINCIPALLY CONCERNS THE GENERAL MANAGER OF THE RAILROAD AND CERTAIN OTHER TOP SUPERVISORY OFFICIALS. WE NOTE THAT THE GENERAL MANAGER HAS BEEN HELD BY THE COURT OF CLAIMS TO BE SUBJECT TO 5 U.S.C. 673C. SEE PARKS V. UNITED STATES, 141 CT.CL. 415. FURTHER, WE UNDERSTAND THAT THE OFFICIALS IN QUESTION WORK A 40 HOUR WORK-WEEK, MONDAY THROUGH FRIDAY, EIGHT HOURS PER DAY. THUS, ANY WORK ON SUNDAY WOULD APPEAR NOT TO BE REGULARLY SCHEDULED AND THE PROVISIONS OF SECTION 405 (F) WOULD NOT BE FOR APPLICATION TO SUCH PERSONNEL. IN THIS CONNECTION WE NOTE THAT THE LANGUAGE OF SECTION 405 (F) IS NOT ENTIRELY CLEAR AS TO WHETHER SUNDAY PREMIUM PAY IS AUTHORIZED FOR REGULARLY SCHEDULED SUNDAY WORK THAT IS IN EXCESS OF THE BASIC WORKWEEK OF 40 HOURS. HOWEVER, ANY DOUBT IN THE MATTER IS REMOVED BY THE LEGISLATIVE HISTORY OF THE PROVISION. IT IS STATED ON PAGE 4 OF SENATE REPORT NO. 1187, MAY 26, 1966, THAT "THIS SECTION REQUIRES A PREMIUM OF 25 PERCENT OF BASE PAY FOR ANY EMPLOYEE WHOSE REGULARLY SCHEDULED 5-DAY WORKWEEK INCLUDES SUNDAY.' SIMILARLY ON PAGE 6 OF HOUSE REPORT NO. 1410, APRIL 1, 1966, IT IS STATED THAT "CLASSIFIED AND WAGE BOARD EMPLOYEES ARE GRANTED 25 PERCENT PREMIUM COMPENSATION FOR WORK ON SUNDAYS WHICH IS NOT SUBJECT TO OVERTIME PAY.'

"/6) DOES THE DOCTRINE OF VOLUNTARY SERVICES SET FORTH IN JOSE V. BACA, ET AL, 150 CT.CL. 70, 86, CERTIORARI DENIED 364 U.S. 892, HAVE ANY EFFECT UPON THE ANSWERS TO ANY OF THE FOREGOING QUESTIONS?

IT IS NOT UNDERSTOOD HOW THE DOCTRINE OF VOLUNTARY SERVICES SET FORTHIN JOSE V. BACA ET AL. V. UNITED STATES, 150 CT.CL. 70, 86, APPLIES IN THIS CLASS OF CASES SINCE SUNDAY WORK MUST BE REGULARLY SCHEDULED BEFORE ENTITLEMENT TO PREMIUM PAY ARISES UNDER THE STATUTE. IF YOUR DEPARTMENT HAS SOME FURTHER SPECIFIC POINT OR QUESTION IN THIS AREA WE SUGGEST THAT IT BE RESUBMITTED IN DETAIL.