B-169450, APRIL 9, 1970, 49 COMP. GEN. 689

B-169450: Apr 9, 1970

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WORK STOPPAGE EFFECT ANNUAL RATE REGULAR POSTAL EMPLOYEES WHO INCIDENT TO PARTICIPATING IN A WORK STOPPAGE DURING WHICH PERIOD THEY WERE CONSIDERED TO HAVE BEEN AWOL. WORKED ON REGULARLY SCHEDULED DAYS OFF WITHOUT COMPLETING A REGULAR TOUR OF DUTY ARE NOT ENTITLED TO OVERTIME COMPENSATION UNDER 39 U.S.C. 3573(A) FOR THE SERVICES PERFORMED ON THEIR REGULARLY SCHEDULED DAYS OFF. IS COMPENSABLE AS OVERTIME. BECAUSE THE EMPLOYEES WERE TEMPORARILY REQUIRED TO SHIFT THEIR WORKWEEK FOR THE NEEDS OF THE SERVICE. HAS NO APPLICATION TO A SITUATION WHERE THE EMPLOYEES WERE RESPONSIBLE FOR THE FAILURE TO COMPLETE A REGULARLY SCHEDULED TOUR OF DUTY. READING IN PART AS FOLLOWS: *** ADVICE IS REQUESTED CONCERNING THE DEPARTMENT'S OBLIGATION.

B-169450, APRIL 9, 1970, 49 COMP. GEN. 689

COMPENSATION -- POSTAL SERVICE -- OVERTIME -- WORK STOPPAGE EFFECT ANNUAL RATE REGULAR POSTAL EMPLOYEES WHO INCIDENT TO PARTICIPATING IN A WORK STOPPAGE DURING WHICH PERIOD THEY WERE CONSIDERED TO HAVE BEEN AWOL, WORKED ON REGULARLY SCHEDULED DAYS OFF WITHOUT COMPLETING A REGULAR TOUR OF DUTY ARE NOT ENTITLED TO OVERTIME COMPENSATION UNDER 39 U.S.C. 3573(A) FOR THE SERVICES PERFORMED ON THEIR REGULARLY SCHEDULED DAYS OFF, UNLESS THEY WORKED IN EXCESS OF 8 HOURS A DAY. THE CONCEPT IN UNITED FEDERATION OF POSTAL CLERKS V WATSON, 409 F. 2D 462, THAT ALL HOURS OF WORK OUTSIDE OF REGULAR WORK SCHEDULES, WHETHER OR NOT IN EXCESS OF 8 HOURS IN A DAY OR 40 HOURS IN A WEEK, IS COMPENSABLE AS OVERTIME, BECAUSE THE EMPLOYEES WERE TEMPORARILY REQUIRED TO SHIFT THEIR WORKWEEK FOR THE NEEDS OF THE SERVICE, HAS NO APPLICATION TO A SITUATION WHERE THE EMPLOYEES WERE RESPONSIBLE FOR THE FAILURE TO COMPLETE A REGULARLY SCHEDULED TOUR OF DUTY.

TO THE POSTMASTER GENERAL, APRIL 9, 1970:

WE REFER TO LETTER OF APRIL 1, 1970, FROM MR. J. R. THOMASON, DEPUTY ASSISTANT POSTMASTER GENERAL AND CONTROLLER, READING IN PART AS FOLLOWS:

*** ADVICE IS REQUESTED CONCERNING THE DEPARTMENT'S OBLIGATION, IF ANY, TO PAY OVERTIME TO ANNUAL RATE REGULAR EMPLOYEES WHO PARTICIPATED IN THE RECENT WORK STOPPAGE. IT HAS BEEN SUGGESTED THAT AS INTERPRETED BY THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT IN UNITED FEDERATION OF POSTAL CLERKS AND DOUGLAS E. GROETTUM V WATSON, 409 F (2D) 462, SECTIONS 3751 (3571) AND 3573 OF THE 39 U.S. CODE, REQUIRE THE PAYMENT OF OVERTIME FOR ALL WORK PERFORMED OUTSIDE THE REGULARLY SCHEDULED WORK DAYS EVEN THOUGH THE EMPLOYEE WAS NOT IN A PAY STATUS ON ONE OR MORE OF HIS REGULARLY SCHEDULED WORK DAYS. DURING THE PERIOD OF THE WORK STOPPAGE, AN APPEAL WAS MADE FOR THESE EMPLOYEES TO RETURN TO WORK WHICH RESULTED IN SOME EMPLOYEES RETURNING TO WORK ON THEIR SCHEDULED DAY OFF. THE DEPARTMENT HAS CONSIDERED THOSE EMPLOYEES WHO PARTICIPATED IN THE WORK STOPPAGE AS BEING AWOL. BECAUSE OF THE NEED TO HANDLE THE BACKLOGGED MAIL, IT WAS NECESSARY TO REQUIRE SOME OF THOSE EMPLOYEES TO WORK ON THEIR PERMANENTLY SCHEDULED OFF DAYS. IN OTHER CASES THE EMPLOYEES WORKED ON THEIR PERMANENTLY SCHEDULED OFF DAYS BEFORE THE BEGINNING OF THEIR REGULAR WORK SCHEDULE.

THE SITUATIONS ARE ILLUSTRATED AS FOLLOWS: EMPLOYEE A, ANNUAL RATE REGULAR, HAS A PERMANENT WORK SCHEDULE OF SATURDAY THROUGH WEDNESDAY WITH THURSDAY AND FRIDAY AS HIS PERMANENTLY SCHEDULED OFFDAYS. HE WAS AWOL SATURDAY, SUNDAY AND MONDAY. HE WORKED 8 HOURS ON TUESDAY, 10 HOURS EACH DAY ON WEDNESDAY AND THURSDAY, AND 8 HOURS ON FRIDAY.

EMPLOYEE B, ANNUAL RATE REGULAR, HAS A PERMANENT WORK SCHEDULE OF MONDAY THROUGH FRIDAY WITH SATURDAY AND SUNDAY AS HIS PERMANENTLY SCHEDULED OFF DAYS. HE WORKED 8 HOURS EACH DAY ON SATURDAY THROUGH TUESDAY. HE WAS AWOL ON WEDNESDAY THROUGH FRIDAY.

AS TO EMPLOYEE A, YOUR ADVICE IS REQUESTED. IS HE ENTITLED TO OVERTIME FOR WORK PERFORMED ON HIS PERMANENTLY SCHEDULED OFFDAYS; I.E., THURSDAY AND FRIDAY AND (2) IS HE ENTITLED TO ANY OVERTIME FOR THE 2 HOURS IN EXCESS OF THE 8 HOURS WORKED ON WEDNESDAY, A PERMANENTLY SCHEDULED WORK DAY? EMPLOYEE A ACTUALLY WORKED 36 HOURS DURING THE SERVICE WEEK.

AS TO EMPLOYEE B, YOUR ADVICE IS REQUESTED. IS HE ENTITLED TO OVERTIME FOR WORK HE PERFORMED ON SATURDAY AND SUNDAY, HIS PERMANENTLY SCHEDULED OFFDAYS? EMPLOYEE B WORKED 32 HOURS DURING THE SERVICE WEEK. SUBSECTION 3571(B) OF TITLE 39, U.S.C. PROVIDES THAT:

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

SUBSECTION 3573(A) PROVIDES THAT OVERTIME WORK FOR AN ANNUAL RATE REGULAR EMPLOYEE IS ANY WORK OFFICIALLY ORDERED OR APPROVED WHICH IS IN EXCESS OF HIS REGULAR WORK SCHEDULE.

THE CASE OF UNITED FEDERATION OF POSTAL CLERKS V WATSON, 409 F. 2D 462, DECIDED FEBRUARY 27, 1969, CITED IN THE ASSISTANT POSTMASTER GENERAL'S LETTER, INVOLVED AN ANNUAL RATE REGULAR EMPLOYEE WHOSE REGULAR WORK SCHEDULE OF MONDAY THROUGH FRIDAY (8 HOURS EACH DAY) WAS TEMPORARILY CHANGED BY ADMINISTRATIVE ACTION APPARENTLY FOR THE NEEDS OF THE SERVICE TO SATURDAY, SUNDAY, TUESDAY, WEDNESDAY AND THURSDAY. ALTHOUGH THE EMPLOYEE HAD RECEIVED THE PROPER ADVANCE NOTICE OF THE CHANGE IN HIS WORK SCHEDULE, THE COURT HELD THAT HE WAS ENTITLED TO OVERTIME PAY FOR THE 8 HOURS OF WORK PERFORMED EACH DAY ON SATURDAY AND SUNDAY WHICH WERE HIS REGULARLY SCHEDULED OFF DAYS. IN ARRIVING AT THAT CONCLUSION THE COURT CONSTRUED SUBSECTIONS 3571(B) AND 3573(A) OF TITLE 39, UNITED STATES CODE, QUOTED ABOVE, TO MEAN THAT IN THE CIRCUMSTANCES BEFORE IT AN ANNUAL RATE REGULAR EMPLOYEE IS ENTITLED TO OVERTIME COMPENSATION FOR ANY WORK PERFORMED OUTSIDE OF THE HOURS AND DAYS OF HIS REGULAR WORK SCHEDULE REGARDLESS OF WHETHER SUCH WORK IS IN EXCESS OF 8 HOURS IN A DAY OR 40 HOURS IN A WEEK.

WHILE WE ARE IN AGREEMENT WITH THE RULING IN THAT CASE WE DO NOT BELIEVE THAT THE COURT'S DECISION REASONABLY CAN BE HELD TO BE APPLICABLE TO THE TWO SITUATIONS PRESENTED. THE COURT WAS CONCERNED WITH A SITUATION IN WHICH POSTAL EMPLOYEES WERE BEING REQUIRED TO WORK ON THEIR REGULARLY SCHEDULED OFF DAYS UNDER TEMPORARY SHIFTS IN THEIR SCHEDULED WORKWEEKS. AS WE READ THE CASE, THE COURT CONCLUDED THAT THE POST OFFICE DEPARTMENT MAY NOT, IN SUCH FASHION, FORCE AN EMPLOYEE TO FOREGO OVERTIME PAY FOR WORK OUTSIDE OF HIS REGULAR WORK SCHEDULE. WHERE SUCH AN ATTEMPT WAS MADE, IT WAS HELD TO BE OF NO CONSEQUENCE THAT THE EMPLOYEE IN TOTAL WORKED ONLY HIS REGULAR NUMBER OF HOURS (40) IN A GIVEN WEEK. CENTRAL TO THE COURT'S CONCLUSION WAS THE UNDERLYING PREMISE, ALBEIT NOT SPECIFICALLY STATED, THAT IT WAS THE POST OFFICE DEPARTMENT AND NOT THE EMPLOYEES THAT CAUSED THE HOURS OF WORK INVOLVED TO BE PERFORMED OUTSIDE OF REGULAR WORK SCHEDULES.

IN THE CIRCUMSTANCES OF THE EXAMPLES PRESENTED, HOWEVER, THE FAILURE OF THE EMPLOYEES TO COMPLETE THEIR REGULAR WORK SCHEDULES WAS NOT DUE TO ACTIONS OF THE DEPARTMENT. WE DO NOT BELIEVE THAT THE CONCEPT ENUNCIATED BY THE COURT--OF CONSTITUTING AS OVERTIME, HOURS OF WORK OUTSIDE OF REGULAR WORK SCHEDULES--CAN REASONABLY BE STRETCHED TO INCLUDE SUCH CIRCUMSTANCES. THEREFORE, WE HOLD IN THE ABOVE EXAMPLES THAT EMPLOYEE "A" IS NOT ENTITLED TO BE PAID AT THE OVERTIME RATE FOR THE FIRST 8 HOURS OF WORK PERFORMED ON THURSDAY OR FOR THE 8 HOURS PERFORMED ON FRIDAY AND THAT EMPLOYEE "B" IS NOT ENTITLED TO OVERTIME COMPENSATION FOR THE 8 HOURS OF WORK PERFORMED ON BOTH SATURDAY AND SUNDAY. SEE 45 COMP. GEN. 257 (1965); 25 ID. 102 (1945); ID. 121 (1945); B-165465, DECEMBER 24, 1968.

HOWEVER, IN RECOGNITION OF THE INTENT OF CONGRESS TO GRANT OVERTIME COMPENSATION FOR ANY WORK PERFORMED IN EXCESS OF 8 HOURS IN A DAY (COMPARE 5 U.S.C. 5542(A) AND 5544(A)), WE HOLD THAT EMPLOYEE "A" IS ENTITLED TO OVERTIME PAY FOR THE 2 HOURS OF WORK IN EXCESS OF 8 HOURS PERFORMED ON BOTH WEDNESDAY AND THURSDAY. SEE 45 COMP. GEN. 257, ANSWER TO QUESTION 6.