B-161104, AUG. 15, 1967

B-161104: Aug 15, 1967

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AUTHORITY TO ADMINISTRATIVELY EXCUSE PER ANNUM EMPLOYEES WHO ARE REQUIRED TO WORK CONTINUOUS TOURS OF DUTY OF 16 HOURS OR MORE IN EMERGENCY SITUATIONS FOR REST PERIODS OF NOT MORE THAN 8 HOURS BEFORE RETURNING TO WORK MAY BE REGARDED AS IN THE INTEREST OF THE GOVT. IT WILL BE NECESSARY FOR THE CSC TO PROMULGATE AN AMENDMENT TO SEC. 610.305. HOWEVER AS TO TEMPORARY PER DIEM EMPLOYEES WHO ARE UNDER APPOINTMENTS LIMITED TO 90 DAYS. YOUR DEPARTMENT'S LETTER GOES ON TO SAY: "IT IS RECOGNIZED THAT THE GENERAL TEST TO BE APPLIED TO NEGOTIATIONS UNDER COLLECTIVE BARGAINING PROCEDURES IS WHETHER MANAGEMENT OFFICIALS HAVE AUTHORITY AND DISCRETION TO DETERMINE EMPLOYMENT CONDITIONS AND PAY PRACTICES IN THE ABSENCE OF NEGOTIATIONS.

B-161104, AUG. 15, 1967

LEAVE - ADMINISTRATIVE - REST PERIODS DECISION TO SECY. OF THE INTERIOR RE AUTHORITY OF THE BUREAU OF RECLAMATION TO INCLUDE IN A COLLECTIVE BARGAINING AGREEMENT WITH EMPLOYEES A PROVISION ADMINISTRATIVELY EXCUSING EMPLOYEES FOR REST PERIODS. AUTHORITY TO ADMINISTRATIVELY EXCUSE PER ANNUM EMPLOYEES WHO ARE REQUIRED TO WORK CONTINUOUS TOURS OF DUTY OF 16 HOURS OR MORE IN EMERGENCY SITUATIONS FOR REST PERIODS OF NOT MORE THAN 8 HOURS BEFORE RETURNING TO WORK MAY BE REGARDED AS IN THE INTEREST OF THE GOVT. AND EMPLOYEE AND WOULD NOT BE AN UNREASONABLE EXERCISE OF ADMINISTRATIVE DISCRETION. WITH RESPECT TO EXCUSING REGULAR EMPLOYEES FOR SIMILAR REST PERIODS, IT WILL BE NECESSARY FOR THE CSC TO PROMULGATE AN AMENDMENT TO SEC. 610.305, FEDERAL PERSONNEL MANUAL TO AUTHORIZE EXCUSING EMPLOYEES IN SUCH CIRCUMSTANCES. AFTER SUCH AMENDMENT, ADMINISTRATIVE ACTION TO EXCUSE THE EMPLOYEES MAY BE TAKEN. HOWEVER AS TO TEMPORARY PER DIEM EMPLOYEES WHO ARE UNDER APPOINTMENTS LIMITED TO 90 DAYS, THEY MAY NOT BE INCLUDED IN THE DEFINITION OF REGULAR EMPLOYEES 5 U.S.C. 6104 FOR SUCH ADMINISTRATIVE LEAVE. TO THE CIVIL SERVICE COMMISSION

TO MR. SECRETARY:

WE REFER TO LETTER OF MARCH 16, 1967, FROM YOUR DEPUTY ASSISTANT SECRETARY OF THE INTERIOR CONCERNING THE AUTHORITY OF THE BUREAU OF RECLAMATION TO INCLUDE A PROVISION ALONG THE FOLLOWING LINE IN A COLLECTIVE BARGAINING AGREEMENT WITH THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS:

"AN EMPLOYEE WHO HAS WORKED SIXTEEN (16) HOURS OR MORE CONTINUOUSLY, BECAUSE OF AN EVENT OR EMERGENCY BEYOND THE CONTROL OF MANAGEMENT OR THE EMPLOYEE, SUCH AS EXTREME WEATHER CONDITIONS, SHALL UPON RELEASE FROM DUTY, BE ENTITLED TO AN EIGHT (8) HOUR REST PERIOD BEFORE HE RETURNS TO WORK. IF THE EIGHT (8) HOUR REST PERIOD EXTENDS INTO HIS BASIC WORKDAY, HE SHALL BE GRANTED ADMINISTRATIVE LEAVE FOR ANY PORTION THEREOF REQUIRED TO COMPLETE THIS REST PERIOD.'

YOUR DEPARTMENT'S LETTER GOES ON TO SAY:

"IT IS RECOGNIZED THAT THE GENERAL TEST TO BE APPLIED TO NEGOTIATIONS UNDER COLLECTIVE BARGAINING PROCEDURES IS WHETHER MANAGEMENT OFFICIALS HAVE AUTHORITY AND DISCRETION TO DETERMINE EMPLOYMENT CONDITIONS AND PAY PRACTICES IN THE ABSENCE OF NEGOTIATIONS, AND THEREBY THE AUTHORITY TO APPLY SUCH PRINCIPLES AS HEREIN PROPOSED TO OTHER CLASSES OF EMPLOYEES. THEREFORE, THE PROPOSAL UNDER CONSIDERATION PRESENTS THE FOLLOWING QUESTIONS:

"/1) DOES MANAGEMENT HAVE THE ADMINISTRATIVE AUTHORITY TO NEGOTIATE WITH EMPLOYEE ORGANIZATIONS A PROVISION WHEREBY ONE, OR A GROUP OF, HOURLY OR WAGE BOARD EMPLOYEES MAY BE EXCUSED FROM DUTY WITHOUT CHARGE TO LEAVE, UNDER THE CONDITIONS PRESENTED HEREIN WHEN SUCH PRACTICE IS PREVAILING IN THE PRIVATE SECTOR FOR SIMILAR POSITIONS?

"/2)IF YOUR ANSWER TO THE ABOVE QUESTION IS AFFIRMATIVE WOULD MANAGEMENT HAVE THE ADMINISTRATIVE AUTHORITY TO APPLY THESE SAME PRINCIPLES TO EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT GENERAL SCHEDULE IF SIMILAR WORK SITUATIONS WERE ENCOUNTERED?

"/3) WE NOTE THAT CIVIL SERVICE COMMISSION REGULATIONS SPEAK TO EXCUSING OF REGULAR EMPLOYEES FROM DUTY WITHOUT CHARGE TO LEAVE. IF YOUR ANSWER TO THE TWO FOREGOING QUESTIONS IS AFFIRMATIVE COULD THESE PRINCIPLES BE EXTENDED TO EMPLOYEES SERVING UNDER TEMPORARY LIMITED APPOINTMENTS WHO ARE NOT CONSIDERED TO BE REGULAR EMPLOYEES, IF SUCH EMPLOYEES ARE NEEDED TO ACCOMPLISH SUCH EMERGENCY WORK?

AS WE PREVIOUSLY ADVISED YOU, WE REQUESTED THE VIEWS OF THE CIVIL SERVICE COMMISSION IN THE MATTER. THAT AGENCY NOW ADVISES THAT IN ITS OPINION THERE IS NO DOUBT BUT THAT AN AGENCY APPROPRIATELY MAY EXCUSE PER ANNUM EMPLOYEES FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO LEAVE IN ORDER TO ENABLE THEM TO HAVE AN EIGHT HOUR REST PERIOD FOLLOWING AN EMERGENCY TOUR OF 16 OR MORE HOURS OF DUTY.

WE CONCUR IN THE VIEW THAT THE EXCUSING OF PER ANNUM EMPLOYEES FOR NOT TO EXCEED 8 HOURS UNDER THE RELATED CIRCUMSTANCES IS IN THE INTEREST OF THE UNITED STATES AS WELL AS THE EMPLOYEE AND DOES NOT APPEAR TO BE AN UNREASONABLE EXERCISE OF ADMINISTRATIVE DISCRETION.

CONCERNING "A REGULAR EMPLOYEE" EMPLOYED ON A DAILY OR PIECEWORK BASIS THERE IS FOR CONSIDERATION 5 U.S.C. 6104, QUOTED IN PART AS FOLLOWS WHICH WE REGARD AS CONTROLLING:

"WHEN A REGULAR EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED REGULARLY BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, WHOSE PAY IS FIXED AT A DAILY OR HOURLY RATE, OR ON A PIECE-WORK BASIS, IS RELIEVED OR PREVENTED FROM WORKING ON A DAY---

"/2) BY ADMINISTRATIVE ORDER UNDER REGULATIONS ISSUED BY THE PRESIDENT, OR, FOR INDIVIDUALS EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, BY THE BOARD OF COMMISSIONERS; OR

HE IS ENTITLED TO THE SAME PAY FOR THAT DAY AS FOR A DAY ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.'

THE QUOTED CODE PROVISION WAS DERIVED FROM THOSE PROVISIONS OF LAW FORMERLY EMBODIED IN 5 U.S.C. 86A. THE PRESIDENT'S AUTHORITY TO PRESCRIBE REGULATIONS EXCUSING EMPLOYEES WHEN BY ADMINISTRATIVE ORDER THEY ARE PREVENTED FROM WORKING WAS DELEGATED TO THE CIVIL SERVICE COMMISSION BY EXECUTIVE ORDER NO. 10552, AUGUST 10, 1954.

THE CIVIL SERVICE COMMISSION POINTED OUT THAT ITS CURRENT REGULATIONS PROMULGATED UNDER 5 U.S.C. 6104 AND EXECUTIVE ORDER NO. 10552 DO NOT PROVIDE FOR THE EXCUSING OF REGULAR EMPLOYEES FOR THE PURPOSE OF ENSURING A MINIMUM PERIOD OF REST FOLLOWING THE PERFORMANCE OF LENGTHY EMERGENCY OVERTIME SERVICE. HOWEVER, THE COMMISSION NOW PROPOSES, SUBJECT TO OUR APPROVAL, TO AMEND ITS REGULATIONS BY ADDING A NEW SUBSECTION (D) TO SECTION 610.305 WHICH WOULD READ AS FOLLOWS:

"SECTION 610.305 STANDARDS. AN ADMINISTRATIVE ORDER MAY BE ISSUED UNDER THIS SUBPART WHEN:

"/D) THE CIRCUMSTANCES ARE SUCH THAT AN ADMINISTRATIVE ORDER UNDER PARAGRAPHS (A), (B), OR (C) OF THIS SECTION IS NOT APPROPRIATE AND THE DEPARTMENT OR AGENCY UNDER ITS REGULATIONS EXCUSES, OR IS AUTHORIZED TO EXCUSE, WITHOUT CHARGE TO LEAVE OR LOSS OF COMPENSATION EMPLOYEES PAID ON AN ANNUAL BASIS.'

BY LETTER OF TODAY WE ADVISED THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION THAT WE WILL ENTERPOSE NO OBJECTION TO THE PROMULGATION OF SUCH AN AMENDMENT TO SECTION 610.305. AFTER SUCH ACTION IS TAKEN IT WOULD BE PROPER FOR YOU TO ISSUE AN ADMINISTRATIVE REGULATION TO AUTHORIZE EXCUSING BOTH PER ANNUM AND PER DIEM (WAGE BOARD) EMPLOYEES TO ENABLE THEM TO OBTAIN REST AFTER PROLONGED PERIODS OF DUTY TO THE EXTENT PREVIOUSLY INDICATED. HOWEVER, AS TO PER DIEM EMPLOYEES APPOINTED ON A TEMPORARY BASIS, THE DEFINITION OF REGULAR EMPLOYEES CONTAINED IN THE CURRENT REGULATIONS OF THE CIVIL SERVICE COMMISSION (SECTION 610.303) WOULD EXCLUDE THOSE TEMPORARY PER DIEM EMPLOYEES WHO ARE SERVING UNDER APPOINTMENTS LIMITED TO 90 DAYS OR LESS UNLESS THEY HAVE BEEN CURRENTLY EMPLOYED FOR A CONTINUOUS PERIOD OF 90 DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT A BREAK IN SERVICE. WE DO NOT CONSIDER A BROADER DEFINITION OF "REGULAR EMPLOYEES" BY THE COMMISSION WOULD BE WARRANTED. FURTHER, SINCE 5 U.S.C. 6104 APPLIES ONLY TO REGULAR EMPLOYEES OUR OPINION IS THAT IT WOULD BE IMPROPER FOR SHORT TERM DAILY OR HOURLY EMPLOYEES WHO DO NOT FALL WITHIN THAT CATEGORY TO BE ALLOWED ADMINISTRATIVE LEAVE BY AGENCY REGULATIONS.