B-181211, NOV 6, 1974

B-181211: Nov 6, 1974

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WHILE SHIP REPAIR ASSIGNMENTS OF TYPE PERFORMED BY CS-12 EMPLOYEE WHICH OCCURRED 5 OR 6 TIMES DURING THE YEAR IN QUESTION MIGHT BE REGARDED AS OTHER THAN OCCASIONAL IF THAT FREQUENCY WAS REGULAR AND COULD BE PREDICTED IN ADVANCE. PFEIFFER - COMPENSATORY TIME OFF: WE HAVE BEEN REQUESTED BY THE COMPTROLLER OF THE NORFOLK NAVAL SHIPYARD TO RENDER AN OPINION AS TO THE ENTITLEMENT OF MR. WAS SENT OVERSEAS IN CONJUNCTION WITH THE REPAIR OF A NAVAL VESSEL. HE PERFORMED THE FOLLOWING AMOUNTS OF REGULAR AND OVERTIME WORK FROM JANUARY 12 THROUGH JANUARY 16: HOURS CREDITED DATE HOURS WORKED REGULAR OVERTIME JANUARY 12 7:30 A.M. - 7:30 P.M. 8 4 JANUARY 13 (SUN.) 6 A.M. - 12 P.M. 0 18 JANUARY 14 12:01 A.M. -4 P.M. 8 8 JANUARY 15 6 A.M. - 12 P.M. 8 10 JANUARY 16 12:01 A.M. - 4:30 P.M. 8 8 WHILE THERE IS NO DISPUTE AS TO THE FACT THAT 48 OF THE HOURS OF WORK PERFORMED BY MR.

B-181211, NOV 6, 1974

WHILE SHIP REPAIR ASSIGNMENTS OF TYPE PERFORMED BY CS-12 EMPLOYEE WHICH OCCURRED 5 OR 6 TIMES DURING THE YEAR IN QUESTION MIGHT BE REGARDED AS OTHER THAN OCCASIONAL IF THAT FREQUENCY WAS REGULAR AND COULD BE PREDICTED IN ADVANCE, THE NEED FOR SUCH WORK ACTUALLY ARISES ON AN IRREGULAR BASIS - WHEN AND AS SHIP EQUIPMENT FAILS AND REQUIRES REPAIR - AND MUST THEREFORE BE REGARDED AS OCCASIONAL FOR PURPOSES OF THE REQUIREMENT TO ACCEPT COMPENSATORY TIME OFF IN LIEU OF OVERTIME IN THE DISCRETION OF THE AGENCY.

M. N. PFEIFFER - COMPENSATORY TIME OFF:

WE HAVE BEEN REQUESTED BY THE COMPTROLLER OF THE NORFOLK NAVAL SHIPYARD TO RENDER AN OPINION AS TO THE ENTITLEMENT OF MR. M.N. PFEIFFER, A GS-12 WELDING ENGINEER, TO COMPENSATION FOR 48 HOURS OF OVERTIME REPAIR WORK.

MR. PFEIFFER, A DAY SHIFT WORKER ON A STAGGERED WORKWEEK THAT INCLUDED AND ENDED ON SATURDAY, JANUARY 12, 1974, WAS SENT OVERSEAS IN CONJUNCTION WITH THE REPAIR OF A NAVAL VESSEL. HAVING DEPARTED FROM NORFOLK AT 5:30 P.M., JANUARY 10, 1974, HE ARRIVED AT THE SHIP SITE AT APPROXIMATELY 7:30 A.M. ON SATURDAY, JANUARY 12, 1974. HE PERFORMED THE FOLLOWING AMOUNTS OF REGULAR AND OVERTIME WORK FROM JANUARY 12 THROUGH JANUARY 16:

HOURS CREDITED

DATE HOURS WORKED REGULAR OVERTIME

JANUARY 12 7:30 A.M. - 7:30 P.M. 8 4

JANUARY 13 (SUN.) 6 A.M. - 12 P.M. 0 18

JANUARY 14 12:01 A.M. -4 P.M. 8 8

JANUARY 15 6 A.M. - 12 P.M. 8 10

JANUARY 16 12:01 A.M. - 4:30 P.M. 8 8

WHILE THERE IS NO DISPUTE AS TO THE FACT THAT 48 OF THE HOURS OF WORK PERFORMED BY MR. PFEIFFER CONSTITUTED OVERTIME DUTY, THE SHIPYARD IS UNCERTAIN WHETHER IT HAS THE OPTION OF REQUIRING HIM TO TAKE COMPENSATORY TIME OFF RATHER THAN PAYING HIM OVERTIME COMPENSATION FOR THAT WORK. SPECIFICALLY, WE ARE ASKED WHETHER THE CIRCUMSTANCE AND THE PATTERN OF OVERTIME HOURS FIT THE DEFINITION OF "REGULARLY SCHEDULED OVERTIME." THE EMPLOYEE CONTENDS THAT THE WORK INVOLVED WAS SCHEDULED IN ADVANCE TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS AND THUS IT IS "REGULARLY SCHEDULED OVERTIME."

WHILE 5 U.S.C. SEC. 5543(A)(2) DOES GIVE THE HEAD OF AN AGENCY AUTHORITY TO REQUIRE CERTAIN EMPLOYEES TO ACCEPT COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION IN CERTAIN INSTANCES, THAT STATUTE DOES NOT MAKE THE SCHEDULING OF SUCH WORK THE TOUCHSTONE OF ENTITLEMENT. RATHER, IT PROVIDES THAT AN EMPLOYEE MAY BE REQUIRED TO ACCEPT COMPENSATORY TIME OFF FOR "IRREGULAR OR OCCASIONAL" OVERTIME WORK. SPECIFICALLY, THAT SUBPARAGRAPH PROVIDES:

"(A) THE HEAD OF AN AGENCY MAY

"(2) PROVIDE THAT AN EMPLOYEE WHOSE RATE OF BASIC PAY IS IN EXCESS OF THE MAXIMUM RATE OF BASIC PAY FOR GS-10 SHALL BE GRANTED COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY EQUAL TO THE AMOUNT OF TIME SPENT IN IRREGULAR OR OCCASIONAL OVERTIME WORK INSTEAD OF BEING PAID FOR THAT WORK UNDER SECTION 5542 OF THIS TITLE."

THE IMPLEMENTING REGULATIONS TO THAT STATUTORY PROVISION ARE FOUND AT 5 CFR 550.114. THOSE PROVIDE AS FOLLOWS:

"SEC. 550.114 COMPENSATORY TIME OFF FOR IRREGULAR OR OCCASIONAL OVERTIME WORK.

"(A) AT THE REQUEST OF AN EMPLOYEE, THE HEAD OF A DEPARTMENT MAY GRANT HIM COMPENSATORY TIME OFF FROM HIS TOUR OF DUTY INSTEAD OF PAYMENT UNDER SEC. 550.113 FOR AN EQUAL AMOUNT OF IRREGULAR OR OCCASIONAL OVERTIME WORK.

"(B) THE HEAD OF A DEPARTMENT MAY PROVIDE THAT AN EMPLOYEE WHOSE RATE OF BASIC PAY EXCEEDS THE MAXIMUM RATE FOR GS-10 SHALL BE PAID FOR IRREGULAR OR OCCASIONAL OVERTIME WORK WITH AN EQUIVALENT AMOUNT OF COMPENSATORY TIME OFF FROM HIS TOUR OF DUTY INSTEAD OF PAYMENT UNDER SEC. 550.113.

"(C) THE HEAD OF A DEPARTMENT MAY FIX A TIME LIMIT FOR AN EMPLOYEE TO REQUEST OR TAKE COMPENSATORY TIME OFF AND MAY PROVIDE THAT AN EMPLOYEE WHO FAILS TO TAKE COMPENSATORY TIME OFF TO WHICH HE IS ENTITLED UNDER PARAGRAPH (A) OR (B) OF THIS SECTION BEFORE THE TIME LIMIT FIXED, SHALL LOSE HIS RIGHT BOTH TO COMPENSATORY TIME OFF AND TO OVERTIME PAY UNLESS HIS FAILURE IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND HIS CONTROL."

IN INTERPRETING THE ABOVE-QUOTED LANGUAGE OF 5 U.S.C. SEC 5543(A)(2), WE HELD IN 53 COMP. GEN. 264 (1973) THAT "IRREGULAR" OVERTIME WORK IS WORK THAT DOES NOT RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS AND THAT THE WORD "OCCASIONAL" AS USED IN 5 U.S.C. SEC. 5543 IS TO BE GIVEN ITS COMMON DICTIONARY DEFINITION, NAMELY "OCCURRING NOW AND THEN; OCCURRING AT IRREGULAR INTERVALS; INFREQUENT." IN THAT PARTICULAR CASE WE FOUND THAT AN EMPLOYEE WHO WAS REQUIRED TO PERFORM 30 MINUTES OF OVERTIME WORK PER DAY ON SUCCESSIVE SUNDAYS FOR AN EXTENDED PERION OF TIME COULD NOT BE REQUIRED TO ACCEPT COMPENSATORY TIME OFF IN LIEU OF OVERTIME COMPENSATION.

IN THE INSTANT CASE WE ARE ADVISED THAT IT IS A RECURRING REQUIREMENT FOR TEAMS OF EMPLOYEES, SUCH AS THAT WITH WHICH MR. PFEIFFER WORKED, TO REPAIR SHIPS IN DIFFERENT PARTS OF THE WORLD AND THAT OVERTIME WORK IS GENERALLY REQUIRED IN CONNECTION WITH SUCH ASSIGNMENTS. IN THE PARTICULAR INSTANCE HERE UNDER CONSIDERATION MR. PFEIFFER WAS ORDERED TO WORK WHATEVER OVERTIME WAS NECESSARY TO GET THE JOB DONE AS PROMPTLY AS POSSIBLE AND THE LISTING OF THE NUMBER OF HOURS WHICH HE PERFORMED WORK DAILY DURING THE ASSIGNMENT INDICATES THAT HE DILIGENTLY FOLLOWED THAT ORDER.

WE ARE ADVISED THAT SHIP REPAIRS OF THE TYPE THAT REQUIRED MR. PFEIFFER'S TEMPORARY ASSIGNMENT HAVE OCCURRED IN THE PAST ON THE ORDER OF 5 TO 6 TIMES ANNUALLY AND THAT ONE OF THREE EMPLOYEES OF THE QUALITY ASSURANCE OFFICE, WELDING ENGINEERING DIVISION, IS ASSIGNED TO EACH TRIP. THE NECESSITY FOR SUCH TRIPS ARISES ON WHAT MIGHT IN THIS CONTEXT BE SAID TO BE MORE THAN AN OCCASIONAL BASIS. HOWEVER, THAT NECESSITY ARISES AT IRREGULAR INTERVALS - WHEN AND AS EQUIPMENT FAILURES REQUIRE THE ATTENTIONS OF THE WELDING ENGINEERING DIVISION. IN VIEW OF THIS AND SINCE THE NECESSITY ARISES ONLY 5 OR 6 TIMES A YEAR, WE MUST CONCLUDE THAT THE OVERTIME WORK OCCURRED ON AN OCCASIONAL BASIS. WHILE IT IS ARGUABLE WHETHER THE 5 DAYS OVERTIME IS "REGULAR" OR "IRREGULAR" IN THE CIRCUMSTANCES PRESENTED IN THIS CASE, THERE IS NO NECESSITY TO MAKE A DETERMINATION ON THAT ISSUE SINCE THE "OCCASIONAL" REQUIREMENT OF THE COMPENSATORY TIME STATUTE HAS BEEN SATISFIED.

SINCE MR. PFEIFFER'S OVERTIME WORK WAS PERFORMED ON AN OCCASIONAL BASIS, IT IS WITHIN THE DISCRETION OF THE SHIPYARD TO REQUIRE MR. PFEIFFER TO ACCEPT COMPENSATORY TIME OFF RATHER THAN OVERTIME COMPENSATION FOR SUCH WORK.