B-165638, JAN. 29, 1969

B-165638: Jan 29, 1969

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IS ENTITLED TO PAYMENT OF OVERTIME COMPENSATION UNDER THE FOLLOWING RELATED FACTS AND CIRCUMSTANCES: MR. ORDERS WERE ISSUED ASSIGNING MR. DUNN WAS FIRST NOTIFIED OF THE CHANGE IN HIS WORK SCHEDULE WHEN HE REPORTED FOR DUTY AT THE MAIN POST OFFICE AT 10 P.M. HE WAS ALLOWED TO WORK A FULL 8-HOUR TOUR AT THE MAIN POST OFFICE BUT WAS INSTRUCTED TO REPORT FOR DUTY AT THE BISCAYNE ANNEX AT 7 P.M. HE WAS INSTRUCTED NOT TO REPORT FOR WORK ON THURSDAY (FEBRUARY 16) AND FRIDAY (FEBRUARY 17) SINCE HE HAD WORKED FIVE 8-HOUR DAYS WITHIN THE SERVICE WEEK COMMENCING SATURDAY. ON THE GROUND THAT SUNDAY WAS A NONWORKDAY UNDER HIS OLD WORK SCHEDULE. THE CLAIM WAS DISALLOWED BY THE POSTMASTER OF THE MIAMI POST OFFICE ON THE GROUND THAT SUNDAY WAS A SCHEDULED WORKDAY FOR MR.

B-165638, JAN. 29, 1969

TO MR. POSTMASTER GENERAL:

WE REFER TO LETTER OF NOVEMBER 15, 1968, WITH ENCLOSURES, FROM THE FORMER POSTMASTER GENERAL REQUESTING OUR DECISION WHETHER MR. JAMES E. DUNN, AN ANNUAL RATE REGULAR EMPLOYEE OF THE POST OFFICE DEPARTMENT, IS ENTITLED TO PAYMENT OF OVERTIME COMPENSATION UNDER THE FOLLOWING RELATED FACTS AND CIRCUMSTANCES:

MR. DUNN'S BASIC WORKWEEK PRIOR TO THE SERVICE WEEK BEGINNING FEBRUARY 11, 1967, PROVIDED FOR SCHEDULED WORK TO BE PERFORMED AT THE MAIN POST OFFICE, MIAMI, FLORIDA, ON SATURDAY, TUESDAY, WEDNESDAY, THURSDAY AND FRIDAY. ON FEBRUARY 9, 1967 (THURSDAY), ORDERS WERE ISSUED ASSIGNING MR. DUNN TO THE BISCAYNE ANNEX AND CHANGING HIS SCHEDULED WORKWEEK TO SUNDAY THROUGH THURSDAY.

MR. DUNN WAS FIRST NOTIFIED OF THE CHANGE IN HIS WORK SCHEDULE WHEN HE REPORTED FOR DUTY AT THE MAIN POST OFFICE AT 10 P.M. ON FRIDAY, FEBRUARY 10, 1967 -- A DAY CHARGED TO SATURDAY, FEBRUARY 11, ON HIS TIME CARD AND APPARENTLY THE FIRST DAY OF HIS OLD WORK SCHEDULE. HOWEVER, SINCE MR. DUNN HAD REPORTED FOR DUTY, HE WAS ALLOWED TO WORK A FULL 8-HOUR TOUR AT THE MAIN POST OFFICE BUT WAS INSTRUCTED TO REPORT FOR DUTY AT THE BISCAYNE ANNEX AT 7 P.M. ON SUNDAY, FEBRUARY 12, IN ACCORDANCE WITH HIS NEW SCHEDULE.

MR. DUNN PERFORMED 8 HOURS OF DUTY ON SUNDAY, MONDAY, TUESDAY AND WEDNESDAY AT THE ANNEX IN ACCORDANCE WITH HIS NEW SCHEDULE. HE WAS INSTRUCTED NOT TO REPORT FOR WORK ON THURSDAY (FEBRUARY 16) AND FRIDAY (FEBRUARY 17) SINCE HE HAD WORKED FIVE 8-HOUR DAYS WITHIN THE SERVICE WEEK COMMENCING SATURDAY, FEBRUARY 11.

MR. DUNN FILED A CLAIM FOR OVERTIME COMPENSATION FOR 8 HOURS OF WORK PERFORMED ON SUNDAY, FEBRUARY 12, ON THE GROUND THAT SUNDAY WAS A NONWORKDAY UNDER HIS OLD WORK SCHEDULE. THE CLAIM WAS DISALLOWED BY THE POSTMASTER OF THE MIAMI POST OFFICE ON THE GROUND THAT SUNDAY WAS A SCHEDULED WORKDAY FOR MR. DUNN UNDER HIS NEW WORK SCHEDULE WHICH WENT INTO EFFECT ON SATURDAY, FEBRUARY 11.

MR. DUNN APPEALED THE DECISION OF THE POSTMASTER AND REQUESTED A HEARING IN ACCORDANCE WITH ARTICLE IX OF THE NATIONAL AGREEMENT. THE HEARING COMMITTEEE DETERMINED THAT MR. DUNN WAS DUE OVERTIME COMPENSATION FOR WORK PERFORMED ON SATURDAY, FEBRUARY 11, A SCHEDULED NONWORKDAY UNDER HIS NEW SCHEDULE, AND THAT MR. DUNN'S RELIEF FROM DUTY ON THURSDAY, FEBRUARY 16, WAS IMPROPER SINCE THAT DAY WAS A SCHEDULED WORKDAY UNDER THE NEW SCHEDULE. THE POSTMASTER, HOWEVER, REFUSED TO ACCEPT THE DECISION OF THE HEARING COMMITTEE.

BASED ON THE FACTS ABOVE, YOUR PREDECESSOR REQUESTED OUR DECISION ON THE FOLLOWING QUESTIONS:

"1. DOES THE REQUIREMENT IN SECTION 3571 (B), TITLE 39, UNITED STATES CODE, PRECLUDE THE DEPARTMENT FROM ESTABLISHING AN INTERIM SCHEDULE OF 5 EIGHT-HOUR DAYS SUCH AS THAT GIVEN TO MR. DUNN FOR THE WEEK FEBRUARY 11 - FEBRUARY 17? (IT IS NOTED THAT MR DUNN HAD FAILED TO INDICATE HIS PREFERENCE FOR A WORKWEEK, AS CONTEMPLATED BY SECTION 3571 (D), AND WAS IN THE STATUS OF AN -UNASSIGNED REGULAR- PRIOR TO THE ORDER OF FEBRUARY 9.)

"2. IF THE ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE, DOES THE FAILURE OF THE DEPARTMENT TO COMPLY WITH THE REQUIREMENTS OF SECTION 3571 (B) ESTABLISH ENTITLEMENT TO OVERTIME COMPENSATION FOR MR. DUNN, (A) AS DETERMINED BY THE HEARING COMMITTEE UNDER THE -NEW- SCHEDULE, (B) AS CLAIMED BY MR. DUNN UNDER THE -OLD- SCHEDULE, OR (C) FOR WORK ON BOTH SUNDAY AND MONDAY, FEBRUARY 12 AND 13, WHICH WERE SCHEDULED DAYS OFF UNDER THE OLD SCHEDULE?

"3. IF THE ANSWER TO QUESTION 2 (A), 2 (B) OR 2 (C) IS IN THE AFFIRMATIVE, IS MR. DUNN ENTITLED, ALSO, TO STRAIGHT-TIME PAY FOR THURSDAY, FEBRUARY 16, IN ADMINISTRATIVE LEAVE STATUS?

ENCLOSED WITH THE LETTER OF NOVEMBER 15 WAS A COPY OF A MEMORANDUM DATED SEPTEMBER 13, 1968, FROM YOUR GENERAL COUNSEL CONCERNING THE MATTER UNDER CONSIDERATION. THE GENERAL COUNSEL STATES, IN PART, THE FOLLOWING:

"* * * FOR THE PURPOSES OF THIS MEMORANDUM, WE ASSUME THAT MR. DUNN HAD NOT BEEN PREVIOUSLY NOTIFIED OF THE PERMANENT CHANGE IN HIS BASIC WORK WEEK BEFORE HE REPORTED FOR WORK AT 10:00 P.M., FEBRUARY 10. ON THAT ASSUMPTION, THE ATTEMPT TO CHANGE THE BASIC WORK WEEK WHEN HE REPORTED IN FOR WORK AT WHAT FOR HIM WAS THE BEGINNING OF THE SERVICE WEEK WAS CONTRARY TO SECTION 3571 (B). IN OUR OPINION, THE ATTEMPT TO CHANGE THE BASIC WORK WEEK UNDER SUCH CIRCUMSTANCES WOULD BE CONTRARY TO THE INTENT OF THE STATUTE. * * * WE FURTHER BELIEVE THAT AT LEAST FOR THE WEEK BEGINNING FEBRUARY 11, 1967, MR. DUNN'S PREVIOUSLY EXISTING PERMANENT BASIC WORK WEEK SHOULD BE CONSIDERED TO HAVE REMAINED IN EFFECT. * * *"

SUBSECTION 3571 (B) OF TITLE 39, U.S.C. PROVIDES:

"THE POSTMASTER GENERAL SHALL ESTABLISH WORK SCHEDULES IN ADVANCE FOR ANNUAL RATE REGULAR EMPLOYEES CONSISTING OF FIVE EIGHT-HOUR DAYS IN EACH WEEK.'

IN NEITHER THE POSTAL MANUAL NOR THE NATIONAL AGREEMENT DID WE FIND A PROVISION IMPLEMENTING THE ABOVE-QUOTED STATUTORY REQUIREMENT. THE SOLE INSTRUCTION ON THE MATTER APPEARS TO BE THE FOLLOWING WHICH WE QUOTE FROM PAGE 10 OF POSTAL BULLETIN NO. 20553, DATED SEPTEMBER 22, 1966:

"TEMPORARY CHANGES IN HOURS AND DAYS OF WORK SHALL NOT BE MADE UNLESS SERVICE NEEDS AT AN INSTALLATION PRECLUDE ADHERENCE TO REGULAR WORK SCHEDULES; SUCH TEMPORARY CHANGES SHALL BE HELD TO A MINIMUM. EMPLOYEES SHALL BE GIVEN AS MUCH ADVANCE NOTICE AS POSSIBLE OF TEMPORARY WORK SCHEDULES, BUT IN NO CASE SHALL THEY BE NOTIFIED LATER THAN THE END OF THEIR TOURS OF DUTY THE PRECEDING WEDNESDAY. IF NOTIFIED AFTER WEDNESDAY, EMPLOYEES REQUIRED TO WORK OUTSIDE THEIR REGULAR SCHEDULES SHALL BE COMPENSATED AT THE OVERTIME RATE IF PERMITTED BY LAW.'

SINCE THERE WAS INVOLVED IN MR. DUNN'S CASE A PERMANENT CHANGE OF ASSIGNMENT RATHER THAN A TEMPORARY CHANGE IN WORK SCHEDULE, BOTH THE HEARING COMMITTEE AND YOUR GENERAL COUNSEL EXPRESSED THE VIEW THAT THE ABOVE-QUOTED INSTRUCTION DOES NOT APPLY TO THIS CASE.

IN THE ABSENCE OF A REGULATION PROVIDING OTHERWISE, IT IS OUR VIEW THAT SUBSECTION 3571 (B), ABOVE, REQUIRES THAT ANNUAL RATE REGULAR EMPLOYEES BE NOTIFIED IN ADVANCE OF ANY CHANGE IN THEIR REGULAR WORK SCHEDULE WHETHER SUCH CHANGE BE PERMANENT OR TEMPORARY. NO SUCH ADVANCE NOTICE WAS GIVEN TO MR. DUNN. ACCORDINGLY, WE CONCUR IN THE VIEW EXPRESSED BY YOUR GENERAL COUNSEL THAT THE ACTION TAKEN IN MR. DUNN'S CASE WAS IN VIOLATION OF SUBSECTION 3571 (B) AND, THUS, DID NOT CONSTITUTE A VALID CHANGE IN HIS WORK SCHEDULE FOR THE THUS, DID NOT CONSTITUTE A VALID CHANGE IN HIS WORK SCHEDULE FOR THE SERVICE WEEK BEGINNING FEBRUARY 11, 1967. CONSEQUENTLY, MR. DUNN'S OLD WORK SCHEDULE CONSISTING OF THE DAYS SATURDAY, TUESDAY, WEDNESDAY, THURSDAY AND FRIDAY IS TO BE REGARDED AS HAVING REMAINED IN EFFECT DURING THE WEEK OF FEBRUARY 11 THROUGH 17, 1967.

SHOULD MR. DUNN ELECT TO BE PLACED ON ANNUAL LEAVE FOR THE TWO DAYS(THRUSDAY, FEBRUARY 16 AND FRIDAY, FEBRUARY 17) HE WAS IMPROPERLY DIRECTED NOT TO REPORT FOR DUTY, HE THEN WILL BE ENTITLED TO OVERTIME COMPENSATION FOR THE WORK PERFORMED ON SUNDAY, FEBRUARY 12 OVERTIME COMPENSATION FOR THE WORK PERFORMED ON SUNDAY, FEBRUARY 12 AND MONDAY, FEBRUARY 13 (IN EXCESS OF 40 HOURS PER WEEK) IN ACCORDANCE WITH THE PROVISIONS OF 39 U.S.C. 3573. HOWEVER, IF THE EMPLOYEE ELECTS NOT TO TAKE ANNUAL LEAVE, AS DISCUSSED ABOVE, THERE WILL EXIST NO BASIS FOR PAYMENT OF OVERTIME COMPENSATION. SEE GENERALLY, B-157963, NOVEMBER 17, 1965, 45 COMP. GEN. 257. IN VIEW OF THE FOREGOING NO SPECIFIC ANSWERS TO THE QUESTIONS PRESENTED ARE NECESSARY.