B-185793, SEP 8, 1976

B-185793, SEP 8, 1976

GAO WILL NOT OBJECT TO PAYMENT OF SHIFT DIFFERENTIAL TO WAGE SUPERVISOR REASSIGNED FROM SWING SHIFT TO SAME GRADE POSITION ON DAY SHIFT FOR 64 WEEKS UPON ADMINISTRATIVE DETERMINATION THAT ASSIGNMENT WAS TEMPORARY. WHETHER ASSIGNMENT IS TEMPORARY IS A FACTUAL QUESTION BEST ANSWERED BY AGENCY WITH REFERENCE TO INTENT OF ASSIGNMENT. GAO WILL NOT OBJECT TO AGENCY DETERMINATION IF REASONABLE. RECORD HERE SHOWS EXTENDED ASSIGNMENT WAS DUE TO ADMINISTRATIVE DELAYS IN PERMANENTLY FILLING DAY SHIFT POSITION AND WOULD SUPPORT SUCH A DETERMINATION.

AMBROSE A. SKIDMORE - WHAT CONSTITUTES TEMPORARY CHANGE OF SHIFT:

THIS ACTION IS IN RESPONSE TO A REQUEST FROM AN AUTHORIZED CERTIFYING OFFICER OF THE UNITED STATES AIR FORCE (USAF) FOR AN ADVANCE DECISION REGARDING THE PROPRIETY OF PAYMENT OF THE CLAIM OF MR. AMBROSE A. SKIDMORE FOR NIGHT DIFFERENTIAL WHILE ON AN EXTENDED CHANGE OF SHIFT.

THE REPORT ACCOMPANYING THE REQUEST FOR DECISION ADVISES THAT MR. SKIDMORE, EMPLOYED BY THE USAF AS A WAGE SUPERVISOR 12, STEP 4, WAS REASSIGNED BY THE AGENCY FROM HIS REGULAR POSITION ON THE SWING SHIFT TO A SAME GRADE LEVEL POSITION ON THE DAY SHIFT FROM FEBRUARY 11, 1973, TO MAY 6, 1974, OR APPROXIMATELY 64 WEEKS. IN CONNECTION WITH THIS CHANGE OF SHIFT, MR. SKIDMORE WAS INSTRUCTED THAT HE WAS BEING REASSIGNED TO THE DAY SHIFT PENDING RECEIPT OF A PROMOTION PROFILE AND SELECTION OF AN EMPLOYEE FOR THE DAY SHIFT POSITION. THE EXTENDED DURATION OF THE ASSIGNMENT RESULTED FROM ADMINISTRATIVE DELAYS IN THE SELECTION AND PROMOTION PROCESS. THE REPORT ALSO ADVISES THAT MR. SKIDMORE REQUESTED REASSIGNMENT TO THE SWING SHIFT WHILE ASSIGNED TO THE DAY SHIFT AND THAT HE ACTUALLY RETURNED TO THE SWING SHIFT UPON COMPLETION OF THE ASSIGNMENT.

WE HAVE PREVIOUSLY ANSWERED IN THE AFFIRMATIVE THE QUESTION OF WHETHER A PREVAILING RATE EMPLOYEE REGULARLY ASSIGNED TO A SWING OR NIGHT SHIFT IS ENTITLED TO THE SHIFT DIFFERENTIAL AUTHORIZED UNDER 5 U.S.C. 5343(F), AS ADDED BY PUBLIC LAW 92-392, APPROVED AUGUST 19, 1972, 86 STAT. 568, FOR THE PERIOD OF A TEMPORARY ASSIGNMENT TO A DAY SHIFT. 53 COMP.GEN. 814 (1974). THE QUESTION PRESENTED HERE IS WHETHER A CHANGE OF SHIFT LASTING 64 WEEKS-- OR ANY EXTENDED PERIOD-- MAY BE CONSIDERED TEMPORARY.

THERE HAS BEEN NO DEFINITIVE INTERPRETATION OF THE TERM "TEMPORARY" IN THIS CONTEXT NOR DO WE THINK THAT ESTABLISHMENT OF A RIGID RULE OR TIME LIMIT IS REQUIRED OR APPROPRIATE. IN CONSIDERING "TEMPORARY" IN SIMILAR, ALTHOUGH UNRELATED, CONTEXTS WHERE ENTITLEMENTS ARE DEPENDENT UPON WHETHER A SPECIFIC ACTION IS TEMPORARY OR NONTEMPORARY IN CHARACTER AND STATUTORY OR REGULATORY STANDARDS ARE LACKING, WE GENERALLY HAVE LOOKED TO THE RECORD FOR OBJECTIVE EVIDENCE OF THE INTENT WITH WHICH THE ACTION WAS TAKEN. SEE, E.G., B-185696, MAY 28, 1976, REGARDING TEMPORARY QUARTERS, OR 14 COMP.GEN. 146 (1934) CONCERNING TEMPORARY VERSUS PERMANENT CHANGE OF STATION. WE ARE OF THE OPINION THAT A SIMILAR APPROACH IS FOR APPLICATION HERE AND THAT THE QUESTION OF WHETHER AN ASSIGNMENT TO A DIFFERENT SHIFT IS TEMPORARY OR NONTEMPORARY, OR FOR WHAT PERIOD IT REMAINS IN EITHER CATEGORY, CAN BEST BE ANSWERED BY REFERENCE TO THE INTENT WITH WHICH THE ASSIGNMENT IS MADE AND CONTINUED.

SINCE THE QUESTION OF THE INTENT WITH WHICH AN ACTION IS TAKEN IS ESSENTIALLY A FACTUAL MATTER, SUCH DETERMINATIONS ARE PRIMARILY FOR THE ADMINISTRATIVE AGENCY. WE WILL NOT QUESTION THE AGENCY'S DETERMINATION AS LONG AS IT IS REASONABLE. B-175957, JULY 27, 1972.

IN THE PRESENT CASE IT APPEARS THAT MR. SKIDMORE'S REASSIGNMENT FROM SWING TO DAY SHIFT WAS TO LAST ONLY UNTIL ANOTHER EMPLOYEE COULD BE SELECTED TO FILL THE DAY SHIFT POSITION AND THAT THE EXTENDED DURATION OF THE ASSIGNMENT WAS THE RESULT OF ADMINISTRATIVE DELAYS NOT ANTICIPATED AT THE TIME OF ASSIGNMENT. IN VIEW OF THESE FACTORS AND MR. SKIDMORE'S REQUEST FOR AND EVENTUAL ACTUAL RETURN TO THE SWING SHIFT, WE ARE OF THE OPINION THAT THE RECORD CONTAINS SUFFICIENT EVIDENCE TO REASONABLY SUPPORT AN ADMINISTRATIVE DETERMINATION THAT MR. SKIDMORE'S DETAIL WAS TEMPORARY. WE NOTE ALSO THAT THE USAF HAS NOW ESTABLISHED REASONABLE GUIDELINES REQUIRING PERIODIC REVIEW AND JUSTIFICATION OF SUCH ASSIGNMENTS WHICH SHOULD LIMIT RECURRENCES OF SIMILAR EXTENDED TEMPORARY ASSIGNMENTS.

IN VIEW OF THE FOREGOING, WE WILL HAVE NO OBJECTION TO PAYMENT TO MR. SKIDMORE OF THE SWING SHIFT DIFFERENTIAL FOR THE PERIOD CLAIMED UPON DETERMINATION BY THE USAF THAT HIS DETAIL WAS A TEMPORARY CHANGE OF SHIFT.