B-175867, JUN 19, 1972

B-175867: Jun 19, 1972

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CIVILIAN EMPLOYEE - OVERTIME COMPENSATION - ENTITLEMENT CONCERNING WHETHER AN EMPLOYEE MAY BE PAID 8 HOURS OVERTIME FOR WORK HE DID NOT PERFORM BUT WHICH HE WAS DENIED FIRST CONSIDERATION TO PERFORM UNDER AN AGREEMENT BETWEEN HILL AFB. GOODE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 28. AN EMPLOYEE MAY BE PAID OVERTIME COMPENSATION FOR 8 HOURS OF IRREGULARLY SCHEDULED OVERTIME WORK WHICH HE SHOULD HAVE BEEN DESIGNATED TO PERFORM BUT WAS NOT SO DESIGNATED BY PROPER AUTHORITY AND WHICH HE DID NOT IN FACT PERFORM. YOU STATE THAT THE EMPLOYEE CONTENDED THAT MANAGEMENT HAD VIOLATED ITS AGREEMENT WITH THE LOCAL UNION BY NOT GIVING HIM FIRST CONSIDERATION TO PERFORM 8 HOURS OF IRREGULARLY SCHEDULED OVERTIME WORK IN THE FUNCTION TO WHICH HE WAS ASSIGNED AND HAD DESIGNATED AN EMPLOYEE ASSIGNED IN ANOTHER AREA OF THE FUNCTION TO PERFORM THE OVERTIME.

B-175867, JUN 19, 1972

CIVILIAN EMPLOYEE - OVERTIME COMPENSATION - ENTITLEMENT CONCERNING WHETHER AN EMPLOYEE MAY BE PAID 8 HOURS OVERTIME FOR WORK HE DID NOT PERFORM BUT WHICH HE WAS DENIED FIRST CONSIDERATION TO PERFORM UNDER AN AGREEMENT BETWEEN HILL AFB, UTAH, AND LODGE 1592, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES. THE SUBJECT GRIEVANCE CANNOT BE CONSIDERED AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITHIN THE MEANING OF 5 CFR 550.803, AND THE PROVISIONS OF 5 U.S.C. 5542(A) CLEARLY CONTEMPLATE THE ACTUAL PERFORMANCE OF DUTY DURING THE OVERTIME PERIOD. ACCORDINGLY, THERE EXISTS NO AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION.

TO MR. JAMES P. GOODE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1972, IN WHICH YOU REQUEST OUR DECISION WHETHER, AS THE RESULT OF A FAVORABLE DECISION BY THE SECRETARY OF THE AIR FORCE TO HIS GRIEVANCE, AN EMPLOYEE MAY BE PAID OVERTIME COMPENSATION FOR 8 HOURS OF IRREGULARLY SCHEDULED OVERTIME WORK WHICH HE SHOULD HAVE BEEN DESIGNATED TO PERFORM BUT WAS NOT SO DESIGNATED BY PROPER AUTHORITY AND WHICH HE DID NOT IN FACT PERFORM.

YOU STATE THAT THE EMPLOYEE CONTENDED THAT MANAGEMENT HAD VIOLATED ITS AGREEMENT WITH THE LOCAL UNION BY NOT GIVING HIM FIRST CONSIDERATION TO PERFORM 8 HOURS OF IRREGULARLY SCHEDULED OVERTIME WORK IN THE FUNCTION TO WHICH HE WAS ASSIGNED AND HAD DESIGNATED AN EMPLOYEE ASSIGNED IN ANOTHER AREA OF THE FUNCTION TO PERFORM THE OVERTIME. THE EMPLOYEE BASED HIS CLAIM ON THE FOLLOWING PORTION OF THE MEMORANDUM OF AGREEMENT BETWEEN HILL AIR FORCE BASE, UTAH, AND LODGE 1592, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES:

"SECTION 2, PARAGRAPH 2. THE ADMINISTRATION OF ANY NECESSARY OVERTIME WORK (INCLUDING THE NATURE OF THE WORK, THE NEED FOR SPECIAL SKILLS, THE PRIORITY OF PRODUCTION OR SUPPORT EFFORT, AND THE NUMBER OF EMPLOYEES REQUIRED) IS SOLELY A FUNCTION OF MANAGEMENT. FIRST CONSIDERATION FOR OVERTIME SHALL BE GIVEN TO THOSE EMPLOYEES WHO ARE CURRENTLY ASSIGNED TO THE JOB. SECOND CONSIDERATION WILL BE GIVEN TO THOSE EMPLOYEES QUALIFIED TO DO THE JOB IN THE AREA OR FUNCTION WHERE THE OVERTIME WORK IS REQUIRED."

AS A RESULT OF THE EVIDENCE PRESENTED BY THE EMPLOYEE AND MANAGEMENT OFFICIALS AT THE GRIEVANCE HEARING, IT WAS THE DECISION OF THE SECRETARY OF THE AIR FORCE THAT MANAGEMENT HAD VIOLATED ITS AGREEMENT WITH THE UNION BY DESIGNATING AN EMPLOYEE, OTHER THAN THE AGGRIEVED, TO PERFORM THE OVERTIME WORK. YOUR SPECIFIC QUESTION IS WHETHER AS CORRECTIVE ACTION THE AGGRIEVED EMPLOYEE MAY BE PAID 8 HOURS OVERTIME COMPENSATION FOR WORK HE DID NOT PERFORM BUT WHICH HE WAS DENIED FIRST CONSIDERATION TO PERFORM UNDER THE UNION-MANAGEMENT AGREEMENT. YOU NOTE THAT IN DECISION 41 COMP. GEN. 273 (1961) PAYMENT OF IRREGULARLY SCHEDULED OVERTIME WAS APPROVED UNDER CIRCUMSTANCES SIMILAR TO THOSE IN THE PRESENT CASE.

DECISION 41 COMP. GEN. 273 INVOLVED, IN PERTINENT PART, THE COMPENSATION OF BACK PAY DUE AN EMPLOYEE WHO WAS ILLEGALLY SEPARATED DURING THE PERIOD OF OCTOBER 2, 1960, TO AUGUST 18, 1961. WE HELD THAT UNDER THE BACK PAY STATUTE IN EFFECT DURING THE PERIOD OF ILLEGAL SEPARATION THE EMPLOYEE WAS ENTITLED TO COMPENSATION FOR THE HOURS OF OVERTIME HE WOULD HAVE WORKED DURING SUCH PERIOD. UNDER THE CURRENT BACK PAY STATUTE (5 U.S.C. 5596) AN EMPLOYEE, WHO IS FOUND BY APPROPRIATE AUTHORITY TO HAVE UNDERGONE AN UNJUSTIFIABLE OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF HIS PAY, ALLOWANCES, OR DIFFERENTIALS, IS ENTITLED, ON CORRECTION OF SUCH PERSONNEL ACTION, TO RECEIVE THE COMPENSATION HE WOULD HAVE RECEIVED DURING SUCH PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED. THE IMPLEMENTING CIVIL SERVICES COMMISSION REGULATION (5 CFR 550.803) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"(E)A PERSONNEL ACTION REFERRED TO IN SECTION 5596 OF TITLE 5, U.S.C. AND THIS SUBPART IS ANY ACTION BY AN AUTHORIZED OFFICIAL OF AN AGENCY WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE AND INCLUDES, BUT IS NOT LIMITED TO, SEPARATIONS FOR ANY REASON (INCLUDING RETIREMENT), SUSPENSIONS, FURLOUGHS WITHOUT PAY, DEMOTIONS, REDUCTIONS IN PAY, AND PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION COVERED BY PART 752 OF THIS CHAPTER."

THE IMPROPER DENIAL OF THE OPPORTUNITY TO THE AGGRIEVED EMPLOYEE IN THIS CASE IS NOT AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION AS DEFINED ABOVE. ACCORDINGLY, THE CITED DECISION IS NOT APPLICABLE.

SECTION 5542(A), TITLE 5, U.S.C. CITED BY YOU AS THE AUTHORITY FOR PAYING OVERTIME IN THIS CASE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR *** IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR *** "

THE ABOVE-CITED STATUTORY PROVISION CLEARLY CONTEMPLATES THE ACTUAL PERFORMANCE OF DUTY DURING THE OVERTIME PERIOD. SEE 46 COMP. GEN. 217 (1966) AND 42 ID. 195 (1962). WHILE THE LAST-CITED DECISIONS CONCERN THE PROVISIONS OF 5 U.S.C. 5544, THE PROVISIONS OF 5 U.S.C. 5542 ARE SIMILAR AND ARE GENERALLY TO BE CONSTRUED IN THE SAME MANNER. SEE B 163730, APRIL 25, 1968, COPY ENCLOSED.

ALTHOUGH THERE APPEARS TO HAVE BEEN A VIOLATION OF SECTION 2, PARAGRAPH 2, OF THE UNION-MANAGEMENT AGREEMENT IN QUESTION, IN VIEW OF THE ABOVE IT IS OUR OPINION THAT THERE IS NO AUTHORITY FOR THE PAYMENT OF OVERTIME COMPENSATION IN THE INSTANT CASE SINCE NO ACTUAL WORK HAS BEEN PERFORMED BY THE EMPLOYEE. THEREFORE, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.