B-163602, MAR. 27, 1968

B-163602, MAR. 27, 1968

TO MR. PAUL KLUSKIEWICZ:

THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 10, 1968, APPEALING FROM OUR OFFICE SETTLEMENT DATED OCTOBER 9, 1967, Z-2343263, DENYING YOUR CLAIM FOR ANNUAL PREMIUM PAY FOR 447 HOURS OF STANDBY DUTY PERFORMED AS STAFF DUTY OFFICER (SDO) WHILE AN EMPLOYEE OF THE PLANS AND MANAGEMENT OFFICE, HEADQUARTERS, MIDDLETOWN AIR MATERIAL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA, DURING 1964, 1965 AND 1966.

YOU SUBMIT IN SUPPORT OF YOUR CLAIM A COPY OF A MEMORANDUM BY THOMAS F. RODGERS, AS DEPUTY CHIEF PLANS AND MANAGEMENT (P-AND-M) OFFICE, INDICATING THAT ONE OF THE EMPLOYEES WHO SERVED AS A STAFF DUTY OFFICER WAS ORALLY REPRIMANDED FOR BEING 60 MILES FROM OLMSTED AIR BASE IN VIOLATION OF A LOCAL DIRECTIVE REQUIRING THE STAFF DUTY OFFICER TO NEVER BE MORE THAN 25 MILES FROM THE BASE. YOU PRESENT THIS TO SHOW THAT THE FREEDOM OF MOVEMENT OF A STAFF DUTY OFFICER WAS LIMITED.

P-AND-M OFFICE INSTRUCTION WO.30-1, DATED SEPTEMBER 1, 1964, PROVIDES, WITH CERTAIN EXCEPTIONS INCLUDING THOSE LIVING MORE THAN 25 MILES BEYOND THE BASE, THAT ALL GS-11 AND HIGHER GRADED PERSONNEL WOULD BE REQUIRED TO SERVE AS STAFF DUTY OFFICERS. THE EMPLOYEES SERVING AS SDO ARE REQUIRED TO REMAIN WITHIN 25 MILES OF THE BASE. IF AN INDIVIDUAL IS UNABLE TO SERVE ON A PARTICULAR DAY HE MUST ARRANGE A SUBSTITUTE. ANOTHER DIRECTIVE (MAAMAR 30-6, PARAGRAPH 3, ATTACHMENT 8, YOUR LETTER OF FEBRUARY 8, 1967) PROVIDES THAT IF A STAFF DUTY OFFICER LEAVES HIS HOME AND CANNOT BE REACHED ON HIS LISTED PHONE HE MUST LEAVE INFORMATION AS TO HIS WHEREABOUTS AND CONTACT COMMAND POST WITHIN 30 MINUTES, EITHER GIVING HIS NEW PHONE NUMBER UPON DEPARTURE IF KNOWN OR UPON ARRIVAL AT THE NEW LOCATION.

IT IS YOUR POSITION THAT THE STANDBY DUTY WAS MANDATORY SINCE IT WAS ASSIGNED BY COMPETENT AUTHORITY ON A REGULARLY SCHEDULED ROSTER BASIS. THE 447 HOURS FOR WHICH YOU CLAIM ANNUAL PREMIUM PAY IS BASED UPON 15-1/2 HOURS STANDBY DUTY ON REGULAR WORKING DAYS AND 24 HOURS STANDBY DUTY ON WEEKEND DAYS.

WITH RESPECT TO THE PAYMENT OF PREMIUM PAY FOR STANDBY DUTY 5 U.S.C. 5545 (C) (1) (FORMERLY 5 U.S.C. 926) PROVIDES AS FOLLOWS:

"/C) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, MAY PROVIDE THAT---

"/1) AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK, SHALL RECEIVE PREMIUM PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS OF THIS SUBCHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF HIS REGULARLY SCHEDULED WEEKLY TOUR. PREMIUM PAY UNDER THIS PARAGRAPH IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT IN EXCESS OF 25 PERCENT, OF SUCH PART OF THE RATE OF BASIC PAY FOR THE POSITION AS DOES NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-9, BY TAKING INTO CONSIDERATION THE NUMBER OF HOURS OF ACTUAL WORK REQUIRED IN THE POSITION, THE NUMBER OF HOURS REQUIRED IN A STANDBY STATUS AT OR WITHIN THE CONFINES OF THE STATION, THE EXTENT TO WHICH THE DUTIES OF THE POSITION ARE MADE MORE ONEROUS BY NIGHT OR HOLIDAY WORK, OR BY BEING EXTENDED OVER PERIODS OF MORE THAN 40 HOURS A WEEK, AND OTHER RELEVANT FACTORS * * *"

IN IMPLEMENTING THE ABOVE STATUTE THE CIVIL SERVICE COMMISSION ISSUED THE FOLLOWING STATUTORY REGULATIONS:

"SEC. 550.141 AUTHORIZATION OF PREMIUM PAY ON AN ANNUAL BASIS.

"AN AGENCY MAY PAY PREMIUM PAY ON AN ANNUAL BASIS, INSTEAD OF THE PREMIUM PAY PRESCRIBED IN THIS SUBPART FOR REGULARLY SCHEDULED OVERTIME, NIGHT, HOLIDAY, AND SUNDAY WORK, TO AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK. * * *

"SEC. 550.143 BASES FOR DETERMINING POSITIONS FOR WHICH PREMIUM PAY UNDER SEC. 550.141 IS AUTHORIZED.

"/A) THE REQUIREMENT FOR THE TYPE OF POSITION REFERRED TO IN SEC. 550.141 THAT AN EMPLOYEE REGULARLY REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION MUST MEET ALL THE FOLLOWING ONDITIONS:

"/1) THE REQUIREMENT MUST BE DEFINITE AND THE EMPLOYEE MUST BE OFFICIALLY ORDERED TO REMAIN AT HIS STATION. * * *

"/2) THE HOURS DURING WHICH THE REQUIREMENT IS OPERATIVE MUST BE INCLUDED IN THE EMPLOYEE'S TOUR OF DUTY. THIS TOUR OF DUTY MUST BE ESTABLISHED ON A REGULARLY RECURRING BASIS OVER A SUBSTANTIAL PERIOD OF TIME, GENERALLY AT LEAST A FEW MONTHS. THE REQUIREMENT MUST NOT BE OCCASIONAL, IRREGULAR, OR FOR A BRIEF PERIOD.

"/3) THE REQUIREMENT MUST BE ASSOCIATED WITH THE REGULARLY ASSIGNED DUTIES OF THE EMPLOYEE'S JOB, EITHER AS A CONTINUATION OF HIS REGULAR WORK WHICH INCLUDES STANDBY TIME, OR AS A REQUIREMENT TO STAND BY AT HIS POST TO PERFORM HIS REGULARLY ASSIGNED DUTIES IF THE NECESSITY ARISES.

"/B) THE WORDS -AT, OR WITHIN THE CONFINES OF, HIS STATION,- IN SEC. 550.141 MEAN ONE OF THE FOLLOWING:

"/1) AT AN EMPLOYEE'S REGULAR DUTY STATION.

"/2) IN QUARTERS PROVIDED BY AN AGENCY, WHICH ARE NOT THE EMPLOYEE'S ORDINARY LIVING QUARTERS, AND WHICH ARE SPECIFICALLY PROVIDED FOR USE OF PERSONNEL REQUIRED TO STAND BY IN READINESS TO PERFORM ACTUAL WORK WHEN THE NEED ARISES OR WHEN CALLED.

"/3) IN AN EMPLOYEE'S LIVING QUARTERS, WHEN DESIGNATED BY THE AGENCY AS HIS DUTY STATION AND WHEN HIS WHEREABOUTS IS NARROWLY LIMITED AND HIS ACTIVITIES ARE SUBSTANTIALLY RESTRICTED. THIS CONDITION EXISTS ONLY DURING PERIODS WHEN AN EMPLOYEE IS REQUIRED TO REMAIN AT HIS QUARTERS AND IS REQUIRED TO HOLD HIMSELF IN A STATE OF READINESS TO ANSWER CALLS FOR HIS SERVICE. THIS LIMITATION ON AN EMPLOYEE'S WHEREABOUTS AND ACTIVITIES IS DISTINGUISHED FROM THE LIMITATION PLACED ON AN EMPLOYEE WHO IS SUBJECT TO CALL OUTSIDE HIS TOUR OF DUTY BUT MAY LEAVE HIS QUARTERS PROVIDED HE ARRANGES FOR SOMEONE ELSE TO RESPOND TO CALLS OR LEAVES A TELEPHONE NUMBER BY WHICH HE CAN BE REACHED SHOULD HIS SERVICES BE REQUIRED.'

THE OCCASIONAL TELEPHONE WATCH TYPE OF DUTY THAT YOU PERFORMED AT HOME AS A STAFF DUTY OFFICER, WHERE YOU COULD ARRANGE FOR A SUBSTITUTE OR LEAVE A TELEPHONE NUMBER WHERE YOU COULD BE REACHED IS EXPRESSLY DISTINGUISHED AS NOT COMING WITHIN THE REQUIREMENT OF THE ABOVE REGULATIONS THAT THE EMPLOYEE REMAIN AT OR WITHIN THE CONFINES OF HIS DESIGNATED STATION. LIKEWISE, THE TYPE OF DUTY WHICH YOU PERFORMED DID NOT SATISFY THE FURTHER CONDITION THAT THE REQUIREMENT BE ASSOCIATED WITH THE REGULARLY ASSIGNED DUTIES OF YOUR JOB OR THAT THE HOURS BE INCLUDED WITHIN YOUR TOUR OF DUTY. MOREOVER, THE PERFORMANCE OF 447 HOURS OF STANDBY DUTY OVER A PERIOD OF THREE YEARS CANNOT BE TERMED SUBSTANTIAL.

ONLY WHEN ALL THESE CONDITIONS WERE PRESENT DID THE DEPARTMENT OF THE AIR FORCE PROVIDE IN A AFR 40-522, MARCH 31, 1964, PARAGRAPHS 9, 10 AND 11 FOR PREMIUM PAY FOR FIREFIGHTERS WHO WERE ON DUTY AT THEIR POSTS 60 - 72 HOURS A WEEK, FOR AIR MOVEMENT DESIGNATORS WHO REGULARLY PERFORMED A SUBSTANTIAL AMOUNT OF STANDBY DUTY AT THEIR DUTY STATIONS IN CONNECTION WITH THEIR POSITIONS IN ADDITION TO THEIR 40-HOUR WORKWEEK AND ALSO FOR NURSE ANESTHETISTS WHO PERFORMED A SUBSTANTIAL AMOUNT OF STANDBY DUTY AT BASE HOSPITALS IN CONNECTION WITH THEIR REGULAR WORK.

SINCE NEITHER THE TYPE NOR AMOUNT OF STANDBY DUTY SATISFIED THE FOREGOING REGULATIONS AND SINCE YOUR HOME HAD NOT BEEN DESIGNATED AS YOUR DUTY STATION YOU ARE NOT ENTITLED TO PREMIUM PAY FOR THE STANDBY DUTY. SEE B- 160475, JANUARY 27, 1967 AND B-160306, DECEMBER 14, 1966 (COPIES ENCLOSED). ACCORDINGLY, OUR PRIOR OFFICE SETTLEMENT DENYING YOUR CLAIM MUST BE AND IS SUSTAINED.