B-172031, JUN 9, 1971, 50 COMP GEN 847

B-172031, JUN 9, 1971, 50 COMP GEN 847

COMPENSATION - ADDITIONAL - ENVIRONMENTAL PAY DIFFERENTIAL - COMPENSATORY TIME IN LIEU AIR NATIONAL GUARD TECHNICIANS, WHETHER THEY ARE WAGE OR NONGRADED EMPLOYEES OR GENERAL SCHEDULE EMPLOYEES, WHO FOR A 12-HOUR WORKDAY RECEIVE 4 HOURS COMPENSATORY TIME FOR WORK IN EXCESS OF 8 HOURS A DAY, OR RECEIVE COMPENSATORY TIME FOR AN 8-HOUR SUNDAY TOUR OF DUTY, ARE NOT ENTITLED TO ENVIRONMENTAL DIFFERENTIAL PAY, NIGHT SHIFT DIFFERENTIAL PAY, OR PREMIUM PAY, AS 32 U.S.C. 709(G) IN AUTHORIZING THE SECRETARY CONCERNED TO PRESCRIBE THE HOURS OF DUTY FOR THE TECHNICIANS AND TO FIX THEIR BASIC COMPENSATION OR ADDITIONAL COMPENSATION, PROVIDES FOR THE GRANTING OF COMPENSATORY TIME IN AN AMOUNT EQUAL TO THE TIME SPENT IN IRREGULAR OR OVERTIME WORK WITH NO COMPENSATION FOR THE COMPENSATORY TIME, SINCE THE COMPENSATORY TIME IS INTENDED TO BE IN LIEU OF OVERTIME OR DIFFERENTIAL PAY FOR ADDITIONAL HOURS OF WORK. COMPENSATION - ADDITIONAL - ENVIRONMENTAL PAY DIFFERENTIAL - PREMIUM PAY IN LIEU AN AIR NATIONAL GUARD TECHNICIAN WHO ASSIGNED TO A 24-HOUR TOUR OF DUTY AT AN AIR NATIONAL AIRCRAFT CONTROL AND WARNING SITE RECEIVES 12 PERCENT ANNUAL PREMIUM PAY UNDER 32 U.S.C. 709(G), WHICH IS PRESCRIBED FOR UNUSUAL TOURS OF DUTY, IRREGULAR DUTY, OR ADDITIONAL DUTY, AND WORK ON DAYS THAT ARE ORDINARILY NONWORKDAYS, WHEN EXPOSED TO DUTY IN A HAZARDOUS CATEGORY IS NOT ENTITLED TO ENVIRONMENTAL DIFFERENTIAL PAY SINCE PREMIUM PAY NOT TO EXCEED 12 PERCENT OF BASIC PAY IS AUTHORIZED TO BE PAID IN LIEU OF ADDITIONAL COMPENSATION, INCLUDING DIFFERENTIALS AND OVERTIME COMPENSATION.

TO THE CHIEF, NATIONAL GUARD BUREAU, JUNE 9, 1971:

WE REFER FURTHER TO YOUR LETTER OF FEBRUARY 23, 1971, REFERENCE NGB TNS, REQUESTING A DECISION CONCERNING THE ENTITLEMENT OF NATIONAL GUARD TECHNICIANS TO PREMIUM PAY AND ENVIRONMENTAL (HAZARDOUS) DIFFERENTIAL PAY DURING PERIODS OF OVERTIME WORK.

YOU STATE THAT THE FOLLOWING FOUR QUESTIONS SET FORTH TYPICAL SITUATIONS COMMON TO THE NATIONAL GUARD TECHNICIAN PROGRAM:

QUESTION NO. 1: AN AIR TECHNICIAN IS EXPOSED FOR THE FIRST TIME TO AN EXPLOSIVES AND INCENDIARY MATERIAL HIGH DEGREE HAZARD CATEGORY IN THE 9TH HOUR OF A TWELVE HOUR WORKDAY (8-HOURS REGULAR SCHEDULE, 4 HOURS COMPENSATORY TIME). AS ENVIRONMENTAL DIFFERENTIAL PAY CONSTITUTES BASE PAY, HOW MANY HOURS OF ENVIRONMENTAL DIFFERENTIAL PAY, IF ANY, IS THE TECHNICIAN ENTITLED?

QUESTION NO. 2: THE LAST FOUR HOURS OF AN AIR TECHNICIAN'S WORKDAY OF TWELVE HOURS (8-HOURS REGULAR SCHEDULE, 4-HOURS COMPENSATORY TIME) ARE FOR A PERIOD OF TIME FOR WHICH NIGHT SHIFT DIFFERENTIAL IS NORMALLY AUTHORIZED. IS THE TECHNICIAN ENTITLED TO NIGHT SHIFT DIFFERENTIAL PAY?

QUESTION NO. 3: A TECHNICIAN AT AN AIR NATIONAL GUARD AIRCRAFT CONTROL AND WARNING SITE IS ON A TWENTY-FOUR (24) HOUR TOUR FROM 0800 HOURS TUESDAY TO 0800 HOURS WEDNESDAY. THE TECHNICIAN IS ENTITLED TO 12% ANNUAL PREMIUM PAY FOR UNUSUAL TOURS OF DUTY, IRREGULAR DUTY, ADDITIONAL DUTY (HOURS IN EXCESS OF 80-HOURS DURING A BI-WEEKLY PAY PERIOD), AND WORK ON DAYS THAT ARE ORDINARILY NONWORKDAYS. FURTHER, DURING THE TWENTY-FOUR (24) HOUR TOUR, THE TECHNICIAN IS CREDITED FOR TWO HOURS OF WORK FOR EACH THREE HOURS SPENT ON SITE, AND ONE HOUR OF STANDBY TIME FOR EACH THREE HOURS SPENT ON SITE. DURING THE TWENTY FOUR HOUR TOUR, THE TECHNICIAN IS EXPOSED TO A POISONS (TOXIC CHEMICALS) LOW DEGREE HAZARD CATEGORY. ENVIRONMENTAL DIFFERENTIAL PAY CONSTITUTES BASE PAY, HOW MANY HOURS OF ENVIRONMENTAL DIFFERENTIAL PAY, IF ANY, IS THE TECHNICIAN ENTITLED?

QUESTION NO. 4: A TECHNICIAN IS REQUIRED TO WORK ON A SUNDAY IN SUPPORT OF A MILITARY AIRLIFT COMMAND MISSION, OUTSIDE HIS REGULARLY SCHEDULED TOUR OF DUTY. THE TECHNICIAN WOULD BE CREDITED ON THE TIME AND ATTENDANCE CARD WITH EIGHT HOURS COMPENSATORY TIME WORKED. IS THE TECHNICIAN ENTITLED TO PREMIUM PAY FOR SUNDAY WORK?

YOU ASK THAT A DETERMINATION BE MADE REGARDING THE ABOVE QUESTIONS AND THE EFFECT 32 U.S.C. 709, AS AMENDED BY THE NATIONAL GUARD TECHNICIANS ACT OF 1968, PUBLIC LAW 90-486, 82 STAT. 755, HAS UPON THE ENTITLEMENT OF NATIONAL GUARD TECHNICIANS TO PREMIUM PAY AND ENVIRONMENTAL PAY DURING PERIODS OF COMPENSATORY (OVERTIME) WORK.

WE UNDERSTAND THAT EMPLOYEES SUBJECT TO THE GENERAL SCHEDULE AS WELL AS WAGE OR NONGRADED EMPLOYEES ARE INCLUDED IN THE FOUR SITUATIONS DESCRIBED ABOVE.

SUBSECTION 709(G) OF TITLE 32, U.S.C. PROVIDES:

(G)(1) NOTWITHSTANDING SECTIONS 5544(A) AND 6102 OF TITLE 5, U.S.C. OR ANY OTHER PROVISION OF LAW, THE SECRETARY CONCERNED MAY, IN THE CASE OF TECHNICIANS ASSIGNED TO PERFORM OPERATIONAL DUTIES AT AIR DEFENSE SITES -

(A) PRESCRIBE THE HOURS OF DUTIES;

(B) FIX THE RATES OF BASIC COMPENSATION; AND

(C) FIX THE RATES OF ADDITIONAL COMPENSATION;

TO REFLECT UNUSUAL TOURS OF DUTY, IRREGULAR AND ADDITIONAL DUTY, AND WORK ON DAYS THAT ARE ORDINARILY NONWORKDAYS. ADDITIONAL COMPENSATION UNDER THIS SUBSECTION MAY BE FIXED ON AN ANNUAL BASIS AND IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT IN EXCESS OF 12 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-10 OF THE GENERAL SCHEDULE UNDER SECTION 5332 OF TITLE 5, UNITED STATES CODE.

(2) NOTWITHSTANDING SECTIONS 5544(A) AND 6102 OF TITLE 5, U.S.C. OR ANY OTHER PROVISION OF LAW, THE SECRETARY CONCERNED MAY, FOR TECHNICIANS OTHER THAN THOSE DESCRIBED IN CLAUSE (1) OF THIS SUBSECTION, PRESCRIBE THE HOURS OF DUTY FOR TECHNICIANS. NOTWITHSTANDING SECTIONS 5542 AND 5543 OF TITLE 5, U.S.C. OR ANY OTHER PROVISION OF LAW, SUCH TECHNICIANS SHALL BE GRANTED AN AMOUNT OF COMPENSATORY TIME OFF FROM THEIR SCHEDULED TOUR OF DUTY EQUAL TO THE AMOUNT OF ANY TIME SPENT BY THEM IN IRREGULAR OR OVERTIME WORK, AND SHALL NOT BE ENTITLED TO COMPENSATION FOR SUCH WORK.

SECTION 8(A) OF PUBLIC LAW 90-486 (32 U.S.C. 709 NOTE) STATES THAT, EXCEPT AS PROVIDED IN 32 U.S.C. 709(G), THE SECRETARY CONCERNED SHALL FIX THE RATE OF BASIC COMPENSATION IN ACCORDANCE WITH THE GENERAL SCHEDULE IN 5 U.S.C. 5332 OR UNDER THE APPROPRIATE PREVAILING RATE SCHEDULE IN ACCORDANCE WITH 5 U.S.C. 5341.

SENATE REPORT NO. 1446, 90TH CONGRESS, 2D SESSION, PART OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-486, STATES AT PAGE 3, "WITH REGARD TO SPECIAL PAYS, OVERTIME, DIFFERENTIAL AND PREMIUM PAY, NONE IS AUTHORIZED UNDER THE PRESENT SYSTEM, ONLY COMPENSATORY TIME OFF." WITH RESPECT TO THE NEW LEGISLATION WHICH SUPERSEDED THE OLD, THE REPORT STATES AT PAGE 16:

PREMIUM PAY FOR TECHNICIANS EMPLOYED AT AIR DEFENSE SITES

THE BILL AUTHORIZES THE SECRETARY CONCERNED, IN THE CASE OF TECHNICIANS ASSIGNED TO PERFORM OPERATIONAL DUTIES AT AIR DEFENSE SITES, TO PRESCRIBE THE HOURS OF THOSE DUTIES, FIX THE RATES OF BASIC COMPENSATION, AND AUTHORIZE ADDITIONAL COMPENSATION NOT TO EXCEED 12 PERCENT OF SUCH PART OF THE RATE OF BASIC PAY AS DOES NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-10 OF THE GENERAL SCHEDULE.

THERE ARE APPROXIMATELY 5,100 TECHNICIANS AFFECTED BY THIS PROVISION. ABOUT 4,500 ARE ON DUTY 62 HOURS A WEEK AS PART OF THEIR NORMAL EMPLOYMENT; 350 ARE NORMALLY ON DUTY ABOUT 50 HOURS A WEEK. THE DEPARTMENT OF DEFENSE HAS INDICATED THAT THOSE ON DUTY FOR 62 HOURS WILL BE AUTHORIZED ANNUAL PREMIUM PAY IN THE AMOUNT OF 12 PERCENT OF BASIC COMPENSATION AND THOSE ON DUTY FOR 50 HOURS ANNUAL PREMIUM PAY AT 8 PERCENT.

AUTHORITY OF THE SECRETARY TO PRESCRIBE THE HOURS OF WORK WITH AUTHORITY FOR COMPENSATORY TIME OFF

THE BILL PROVIDES THAT THE SECRETARY CONCERNED MAY PRESCRIBE THE HOURS OF DUTY FOR ALL TECHNICIANS (OTHER THAN THOSE EMPLOYED AT AIR DEFENSE SITES WHERE SEPARATE AUTHORITY WILL APPLY) AND DIRECTS THE SECRETARY TO GRANT COMPENSATORY TIME OFF TO A TECHNICIAN FROM A REGULARLY SCHEDULED TOUR OF DUTY IN AN AMOUNT EQUAL TO THE AMOUNT OF TIME SPENT IN IRREGULAR OR OVERTIME WORK IN LIEU OF BEING PAID FOR THAT WORK. THIS AUTHORITY WILL CONTINUE THE EXISTING PRACTICE REGARDING HOURS OF WORK AND COMPENSATORY TIME OFF. IT IS THE FIRM VIEW OF THE COMMITTEE THAT THE IRREGULAR HOURS OF WORK TO WHICH TECHNICIANS ARE SUBJECTED ON FREQUENT OCCASIONS MAKE IT IMPRACTICAL, BOTH FROM THE STANDPOINT OF THE GOVERNMENT AND THE INDIVIDUAL, TO BE LIMITED TO THE NORMAL PROVISIONS REGARDING A STRAIGHT 40 -HOUR WEEK WITH OVERTIME OR DIFFERENTIAL PAY FOR ADDITIONAL HOURS OF WORK. THE FREQUENT IRREGULAR HOURS ARE INHERENT IN THE TECHNICIAN JOB AND POSITION.

THE APPLICABLE PARTS OF THE HOUSE REPORT NO. 1823, 90TH CONGRESS, 2D SESSION, AT PAGES 12 AND 13, ARE TO THE SAME EFFECT.

WE NOTE THAT THE STATUTORY PROVISION REGARDING COMPENSATORY TIME OFF FOR IRREGULAR OR OVERTIME WORK SPECIFICALLY STATES THAT NO COMPENSATION IS ALLOWABLE FOR SUCH WORK. ALSO, THAT PORTION OF THE LEGISLATIVE HISTORY QUOTED ABOVE DEALING WITH COMPENSATORY TIME OFF INDICATES THAT SUCH TIME OFF IS TO BE IN LIEU OF OVERTIME OR DIFFERENTIAL PAY FOR ADDITIONAL HOURS OF WORK.

THE STATUTORY PROVISION AND THE STATEMENT IN THE LEGISLATIVE REPORTS RELATING TO THE 12 PERCENT ADDITIONAL COMPENSATION ARE NOT AS CLEAR REGARDING THE TYPES OF COMPENSATION IT SUPPLANTS. NO REFERENCE IS MADE THEREIN EVEN TO OVERTIME COMPENSATION BUT IT SEEMS APPARENT THAT THE LANGUAGE "(C) FIX THE RATES OF ADDITIONAL COMPENSATION" AS USED IN THE ABOVE STATUTE INCLUDES DIFFERENTIALS SUCH AS FOR NIGHT, HOLIDAY, SUNDAY, AND HAZARDOUS DUTY COMPENSATION, AS WELL AS OVERTIME COMPENSATION. THEREFORE, IT IS REASONABLE TO SAY THAT THE SAME LANGUAGE "ADDITIONAL COMPENSATION" USED IN THE NEXT SENTENCE OF THE STATUTE WITH RESPECT TO THE 12 PERCENT OF BASIC PAY WAS INTENDED TO MEAN THAT IT WOULD BE IN LIEU OF THE ADDITIONAL COMPENSATION INCLUDING DIFFERENTIALS AND OVERTIME COMPENSATION WHICH OTHERWISE COULD BE FIXED.

ACCORDINGLY, AS TO QUESTIONS 1 AND 3, NO ENVIRONMENTAL DIFFERENTIAL IS PAYABLE. QUESTIONS 2 AND 4 ARE ANSWERED IN THE NEGATIVE.