B-168493, JAN. 28, 1970

B-168493, JAN. 28, 1970

CIVIL PAY--OVERTIME COMPENSATION--WAGE BOARD EMPLOYEES DECISION TO COMPTROLLER, NORFOLK NAVAL SHIPYARD CONCERNING PAYMENT OF OVERTIME FOR WAGE BOARD EMPLOYEES REQUIRED TO HAVE SHIFT "DOUBLED BACK" FOR CRITICAL SHIP REPAIR WORK. EMPLOYEES ASSIGNED TO MONDAY THROUGH FRIDAY SHIFT WHO ARE CALLED IN ON SUNDAY EVENING AND WORK UNTIL MONDAY MORNING WITH NO INTENT TO CHANGE THEIR TOURS OF DUTY EMPLOYEES MAY BE COMPENSATED AT OVERTIME RATES AND PLACED ON ANNUAL LEAVE FOR NEXT TOUR OF DUTY.

TO MR. W. G. NORMILE:

YOUR REQUEST OF AUGUST 29, 1969, REFERENCE NY6/12770(600) SER 600 728, DIRECTED TO US THROUGH OFFICIAL CHANNELS, ASKS WHETHER, IN VIEW OF OUR DECISION B-164953, OCTOBER 14, 1969, THE LONG ESTABLISHED PRACTICE AT THE NORFOLK NAVAL SHIPYARD OF PAYING OVERTIME UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED IS LEGAL.

YOUR LETTER POINTS OUT THERE ARE OCCASIONS WHEN WAGE BOARD EMPLOYEES ASSIGNED TO A DAY SHIFT (I.E; 0800-1645) MUST BE "DOUBLED BACK" (0000 0800) PRIOR TO THEIR NEXT NORMAL SHIFT IN ORDER TO EXPEDITE THE SHIP REPAIR WORK WHICH IS CRITICAL TO THE COMPLETION SCHEDULE. FURTHER YOU POINT OUT THAT PAST PRACTICE HAS BEEN TO PAY OVERTIME FOR THE DOUBLING BACK SHIFT AND TO PLACE THE EMPLOYEE ON ANNUAL LEAVE FOR HIS NEXT NORMAL SHIFT. WE NOTE THE FOLLOWING INFORMATION CONTAINED IN THE STATEMENT OF THE COMMANDER, NORFOLK NAVAL SHIPYARD, DATED SEPTEMBER 2, 1969, ATTACHED TO YOUR LETTER, READING AS FOLLOWS:

"1. THIS SHIPYARD IS AWARE AND ATTEMPTS TO CARRY OUT FULLY ITS OBLIGATION TO CAREFULLY PREPLAN, AND ADVISE ITS EMPLOYEES WELL IN ADVANCE OF, WORK REQUIREMENTS. MOREOVER, THERE HAVE BEEN IDENTIFIED, DESCRIBED AND PROVISIONS MADE FOR RECOGNIZED EXCEPTION WORK SITUATIONS WHICH RESULT IN CHANGES OF SHIFT HOURS WITH LESS THAN THREE DAYS NOTICE. HOWEVER, THERE REMAIN UNPREDICTABLE EVENTS NECESSITATING CALLING IN EMPLOYEES ON OTHER THAN THEIR REGULAR SHIFTS FOR WORK OF IMMEDIATE AND SHORT DURATION WITHOUT ADVANCE NOTICE. IN SUCH EVENTS IT IS NOT THE DESIRE NOR THE INTENT OF OUR MANAGERS TO CHANGE AN EMPLOYEE'S SHIFT. FURTHER, IT IS BELIEVED STRONGLY THAT GOOD PERSONNEL MANAGEMENT AND THE TYPE OF PERSONNEL MANAGEMENT APPLICATION THIS SHIPYARD DESIRES, DICTATES THAT AN EMPLOYEE WORKED IN SUCH A SITUATION BE ADEQUATELY COMPENSATED.

"2. A BRIEF EXAMPLE OF THE TYPE SITUATION FOUND IS THAT OF AN EMPLOYEE ASSIGNED TO THE MONDAY THROUGH FRIDAY, 0800 - 1645 SHIFT BEING CALLED IN ON A SUNDAY AT 1630 AND WORKED UNTIL 0330. THE CONSTRUCTION GIVEN BY THE QUONSET POINT RULING PRESAGES A CHANGE OF SHIFT, THE EMPLOYEE IS PAID FOR EIGHT HOURS STRAIGHT TIME AND THREE HOURS OVERTIME. MOREOVER, HE IS CONSIDERED IN A NON-WORK STATUS ON THE FOLLOWING MONDAY, WHICH THERETOFORE WOULD HAVE BEEN HIS NORMAL WORKDAY. HE, OF COURSE, IS SUBJECTED TO YET ANOTHER UNSCHEDULED SHIFT CHANGE, BACK TO HIS NORMAL HOURS OF 0800 TO 1645 ON THE NEXT DAY OR TUESDAY, AND THEN FINISHES HIS WORK WEEK.

"3. THE ABOVE EXAMPLE IS FACTUAL, NOT FANCY, AND THIS EXACT APPLICATION IS FORCED TO BE APPLIED BY OUR COMPTROLLER DUE TO THE QUONSET POINT OPINION. THIS SHIPYARD DOES NOT SUBSCRIBE TO THE OBVIOUS INEQUITY FORCED UPON ITS EMPLOYEE IN SUCH A SITUATION AND STRONGLY URGES THAT A DIFFERENT RULING BE MADE AND APPLIED; TO-WIT: THAT THE EMPLOYEE WORKED IN THE SITUATION DESCRIBED ABOVE BE COMPENSATED AT OVERTIME PAY FOR THE ELEVEN HOURS WORKED AND BE RETAINED IN EITHER A WORK OR LEAVE STATUS (ANNUAL OR ADMINISTRATIVE) IN THE FIRST WORKDAY OF HIS REGULAR WORK WEEK.

"4. WHERE IT IS NEITHER THE INTENT NOR THE DESIRE OF SHIPYARD MANAGERS TO CHANGE AN EMPLOYEE'S SHIFT AND WHERE IMMEDIATE AND SHORT DURATION WORK IS REQUIRED, IT IS NOT CONSIDERED REASONABLE, EQUITABLE OR SOUND PERSONNEL MANAGEMENT TO EXACT A PENALTY UPON THE SELECTED EMPLOYEE WHOSE ONLY PART IS THE ACCOMPLISHMENT OF NECESSARY WORK OUTSIDE HIS REGULAR SHIFT HOURS."

THE DETERMINATION IN THE ABOVE REFERRED TO DECISION WAS BASED UPON THE EXAMPLES FURNISHED BY THE ADMINISTRATIVE OFFICE. THE EXAMPLES SPECIFICALLY SHOWED THAT THE EMPLOYEES' SHIFTS WERE CHANGED. WE POINTED OUT THAT IF NO VALID CHANGES IN SUCH TOURS OCCURRED IT WOULD BE PROPER TO CHARGE ANNUAL LEAVE FOR THE REGULAR TOUR OF DUTY ON A PARTICULAR DAY AND REGARD THE HOURS ACTUALLY WORKED AS OVERTIME AND THAT CONVERSELY IF VALID CHANGES IN TOURS OF DUTY OCCURRED THEN THE CHARGING OF ANNUAL LEAVE AND THE PAYMENT OF OVERTIME COMPENSATION WAS NOT FOR CONSIDERATION. DETERMINED IN THE FOREGOING CASE THAT THE CHANGES IN THE TOURS OF DUTY WERE TO BE REGARDED AS VALID AND THAT NO CHARGING OF ANNUAL LEAVE FOR THE PURPOSE OF PAYING OVERTIME COMPENSATION WAS AUTHORIZED.

THE APPLICATION OF THE FOREGOING DECISION DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE. SINCE IT IS APPARENT FROM THE INFORMATION FURNISHED BY YOU THAT NO VALID CHANGES OCCURRED IN THE TOURS OF DUTY REFERRED TO, THERE EXISTS A PROPER BASIS FOR COMPENSATING SUCH EMPLOYEES AT OVERTIME RATES FOR THE WORK PERFORMED AND PLACING THEM ON ANNUAL LEAVE FOR THE NEXT TOUR OF DUTY. YOUR QUESTION IS ANSWERED ACCORDINGLY.