B-162599, OCT. 31, 1967

B-162599, OCT. 31, 1967

COMPENSATION - OVERTIME - SUNDAYS DECISION TO THE GOVERNOR OF THE CANAL ZONE CONCERNING AN INCREASE IN THE ANNUAL PREMIUM COMPENSATION TO FIRE-FIGHTERS IN THE CANAL ZONE FOR SUNDAY WORK. EMPLOYEES WHO ARE PAID ANNUAL PREMIUM COMPENSATION FOR REGULARLY SCHEDULED STANDBY DUTY AND WHO ARE REQUIRED TO REMAIN IN THE CONFINES OF THEIR STATION FROM MIDNIGHT SATURDAY TO 8:00 A.M. ON SUNDAY WHICH TIME WITHIN A 72 HOUR WEEKLY TOUR OF DUTY CONSISTING OF 24 HOURS ACTUAL WORK, 16 HOURS OF STANDBY DUTY AND 32 HOURS FOR EATING AND SLEEPING MAY RECEIVE CREDIT FOR SUNDAY DUTY WHENEVER THEIR REGULARLY SCHEDULED TOUR OF DUTY EXTENDS INTO SUNDAY, NOTWITHSTANDING THAT THEY DO NOT PERFORM ANY ACTUAL WORK DURING SUCH TIME.

TO GOVERNOR LEBER:

BY LETTER DATED SEPTEMBER 27, 1967, YOU REQUESTED OUR DECISION ON A MATTER CONCERNING AN INCREASE IN THE RATE OF ANNUAL PREMIUM COMPENSATION PAYABLE TO CERTAIN EMPLOYEES OF THE CANAL ZONE GOVERNMENT DUE TO THEIR PERFORMANCE OF SUNDAY WORK.

YOU STATE THAT THE CANAL ZONE GOVERNMENT EMPLOYS 36 FIRE OFFICERS WHO RECEIVE PREMIUM COMPENSATION ON AN ANNUAL BASIS FOR THE PERFORMANCE OF REGULARLY SCHEDULED STANDBY DUTY IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5545 (C) (1). THE FIRE OFFICERS HAVE A SCHEDULED TOUR OF 24 HOURS ON DUTY AND 24 HOURS OFF DUTY FOR A TOTAL OF 72 HOURS PER WEEK. YOU SAY THAT THE 72-HOUR WEEK, WHICH IS SPENT WITHIN THE CONFINES OF A FIRE STATION OR ON SPECIFIED DUTY ASSIGNMENTS IN THE FIELD, CONSISTS OF 24 HOURS OF ACTUAL WORK, 16 HOURS OF STANDBY DUTY, AND 32 HOURS ALLOTTED FOR EATING AND SLEEPING.

YOU POINT OUT THAT SUBSECTION 405 (C) OF THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966, PUB.L. 89-504, AMENDED THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO REQUIRE THE PAYMENT OF PREMIUM COMPENSATION FOR SUNDAY WORK TO CLASSIFIED EMPLOYEES. IN ADDITION, SUBSECTION 405 (D) OF SUCH ACT AMENDED SECTION 401 (1) OF THE PAY ACT OF 1945 (NOW 5 U.S.C. 5545 (C) (1) ( TO INCLUDE SUNDAY WORK AS AN ELEMENT TO BE CONSIDERED IN ESTABLISHING RATES OF PREMIUM COMPENSATION PAYABLE FOR REGULARLY SCHEDULED STANDBY DUTY.

AS A RESULT OF THE STATUTORY AMENDMENTS REFERRED TO ABOVE, THE CIVIL SERVICE COMMISSION AMENDED SECTION 550.144 (A) OF ITS REGULATIONS (CONTAINED IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-1, BOOK III) BY ADDING THE FOLLOWING NEW SUBSECTION:

"/4) WHEN AN AGENCY PAYS AN EMPLOYEE ONE OF THE RATES AUTHORIZED BY SUBPARAGRAPHS (1), (2), OR (3) OF THIS PARAGRAPH, THE AGENCY SHALL INCREASE THIS RATE BY ADDING (I) 2-1/2 PERCENT TO THE RATE WHEN THE EMPLOYEE IS REQUIRED TO PERFORM SUNDAY WORK ON AN AVERAGE OF 20 TO 40 SUNDAYS OVER A YEAR'S PERIOD OR (II) 5 PERCENT TO THE RATE WHEN THE EMPLOYEE IS REQUIRED TO PERFORM SUNDAY WORK ON AN AVERAGE OF 41 OR MORE SUNDAYS OVER A YEAR'S PERIOD BUT THE RATE THUS INCREASED MAY NOT EXCEED 25 PERCENT.'

YOUR REQUEST FOR OUR DECISION IN THE MATTER IS OCCASIONED BY THE FOLLOWING CIRCUMSTANCES AS QUOTED FROM YOUR LETTER:

"* * * ACTING UNDER THE FOREGOING REGULATION (SECTION 550.144 (A) (4), QUOTED ABOVE) THIS AGENCY COMMENCED TO PAY THE FIRE OFFICERS AN ADDITIONAL 2.5 PERCENT FOR SUNDAY WORK RETROACTIVE TO JULY 31, 1966. THIS WAS DONE BECAUSE IT HAD BEEN DETERMINED ON THE BASIS OF A PROJECTION OVER A 2-YEAR FUTURE PERIOD THAT THE AVERAGE NUMBER OF SUNDAYS ON WHICH THESE EMPLOYEES WOULD BE REQUIRED TO WORK WAS MORE THAN 20 BUT FEWER THAN 41.

"THE QUESTION HERE PRESENTED ARISES FROM A CLAIM BY THE EMPLOYEES CONCERNED THAT THEY ARE ENTITLED TO THE 5 PERCENT RATE FOR SUNDAY WORK INSTEAD OF 2.5 PERCENT; THIS WOULD INCREASE THEIR TOTAL PREMIUM RATE FROM 22.5 TO 25 PERCENT OF BASIC COMPENSATION. THE EMPLOYEES CONTEND THAT THE 8-HOUR PERIOD AT THE END OF THE 24-HOUR TOUR WHICH COMMENCES AT 8:00 A.M. ON SATURDAY QUALIFIES AS -SUNDAY WORK- UNDER SECTION 550.144 (A) (4). THE CLAIM IS ASSERTED FOR THE PERIOD FROM JULY 31, 1966 TO DATE AND CONTINUING PROSPECTIVELY.

"THE CANAL ZONE GOVERNMENT HAS NOT INCLUDED THE PERIOD FROM MIDNIGHT TO 8:00 A.M. AS -SUNDAY WORK- FOR THE REASON THAT IT IS ALLOCATED FOR SLEEPING, AND NO WORK OR STANDBY DUTY IS REQUIRED OF THE EMPLOYEES DURING THOSE HOURS. THIS ACTION BY THE AGENCY IS BASED UPON AN INTERPRETATION OF THE ABOVE-QUOTED SECTION 550.144 (A) (4) IN THE LIGHT OF THE DEFINITIONS OF TERMS SET FORTH IN 5 CFR SECS. 550.103 (L) AND 550.103 (P), WHICH READ AS FOLLOWS: "-/L) -TOUR OF DUTY- MEANS THE HOURS OF A DAY (A DAILY TOUR OF DUTY) AND THE DAYS OF AN ADMINISTRATIVE WORKWEEK (A WEEKLY TOUR OF DUTY) THAT ARE SCHEDULED IN ADVANCE AND DURING WHICH AN EMPLOYEE IS REQUIRED TO PERFORM WORK ON A REGULARLY RECURRING BASIS.

* * * * * * * "-/P) SUNDAY WORK- MEANS ALL WORK DURING A REGULARLY SCHEDULED TOUR OF DUTY WITHIN A BASIC WORKWEEK WHEN ANY PART OF THAT WORK IS PERFORMED ON SUNDAY.-"

YOU THEN GO ON TO SAY THAT THE CANAL ZONE GOVERNMENT HAS INTERPRETED THE COMMISSION'S REGULATIONS TO MEAN THAT AN EMPLOYEE MUST PERFORM ACTUAL WORK ON A SUNDAY, AS OPPOSED TO BEING IN A STANDBY STATUS, IN ORDER FOR SUNDAY TO BE COUNTED FOR PURPOSES OF ADDITIONAL PREMIUM COMPENSATION.

WE HAVE INFORMALLY DISCUSSED THE MATTER WITH REPRESENTATIVES OF THE CIVIL SERVICE COMMISSION AND THEY CONCUR IN OUR OPINION THAT EMPLOYEES WHO ARE PAID ANNUAL PREMIUM COMPENSATION FOR REGULARLY SCHEDULED STANDBY DUTY (5 U.S.C. 5545 (C) (1) ( ARE ENTITLED TO RECEIVE CREDIT FOR SUNDAY DUTY WHENEVER THEIR REGULARLY SCHEDULED TOURS OF DUTY EXTEND INTO SUNDAY. THAT IS TO SAY, FOR PURPOSES OF SECTION 550.144 (A) (4), ABOVE,"SUNDAY WORK" INCLUDES ANY PERIOD ON SUNDAY DURING WHICH THE EMPLOYEE IS REGULARLY REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF HIS STATION.

APPLYING THAT INTERPRETATION TO THE FACTS OF THE PRESENT CASE, IT IS OUR OPINION THAT THE EMPLOYEES CONCERNED ARE ENTITLED TO HAVE COUNTED AS "SUNDAY WORK" THE LAST EIGHT HOURS (FROM 12 MIDNIGHT ON SATURDAY TO 8 A.M. ON SUNDAY) OF THEIR REGULAR TOURS OF DUTY WHICH ARE SPENT IN A STANDBY STATUS AT THEIR DUTY STATIONS.