B-198759, FEB 10, 1981

B-198759: Feb 10, 1981

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AN ELECTRICIAN WG-08 EMPLOYEE PERFORMED WG-10 ELECTRICIAN DUTIES AT LEAST 80 PERCENT OF THE TIME ALTHOUGH HE WAS NEVER OFFICIALLY DETAILED TO THAT WG-10 POSITION. HIS SUPERVISORS WERE AWARE THAT HE WAS PRIMARILY PERFORMING HIGHER GRADE DUTIES AND MADE NO EFFORT TO STOP THIS PRACTICE UNTIL HE FILED A CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY. THE EMPLOYEE HAS MET HIS BURDEN OF PROOF TO SHOW THAT AN INFORMAL DETAIL EXISTED AND HE IS ENTITLED TO RELIEF PURSUANT TO TURNER-CALDWELL. A WAGE GRADE EMPLOYEE WHOSE JOB DESCRIPTION REQUIRES HIM TO BE ON EMERGENCY CALL BACK DUTY IS NOT ENTITLED TO OVERTIME PAY FOR STANDBY DUTY UNLESS HE PROVES THAT HIS WHEREABOUTS WERE NARROWLY LIMITED AND HIS ACTIVITIES SEVERELY RESTRICTED.

B-198759, FEB 10, 1981

DIGEST: 1. AN ELECTRICIAN WG-08 EMPLOYEE PERFORMED WG-10 ELECTRICIAN DUTIES AT LEAST 80 PERCENT OF THE TIME ALTHOUGH HE WAS NEVER OFFICIALLY DETAILED TO THAT WG-10 POSITION. HOWEVER, HIS SUPERVISORS WERE AWARE THAT HE WAS PRIMARILY PERFORMING HIGHER GRADE DUTIES AND MADE NO EFFORT TO STOP THIS PRACTICE UNTIL HE FILED A CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY. UNDER THESE CIRCUMSTANCES, THE EMPLOYEE HAS MET HIS BURDEN OF PROOF TO SHOW THAT AN INFORMAL DETAIL EXISTED AND HE IS ENTITLED TO RELIEF PURSUANT TO TURNER-CALDWELL, 56 COMP.GEN. 427 (1977). 2. A WAGE GRADE EMPLOYEE WHOSE JOB DESCRIPTION REQUIRES HIM TO BE ON EMERGENCY CALL BACK DUTY IS NOT ENTITLED TO OVERTIME PAY FOR STANDBY DUTY UNLESS HE PROVES THAT HIS WHEREABOUTS WERE NARROWLY LIMITED AND HIS ACTIVITIES SEVERELY RESTRICTED. IN THIS CASE, EMPLOYEE HAS FAILED TO MEET BURDEN OF PROOF ON THESE POINTS AND HIS CLAIM FOR STANDBY OVERTIME IS DENIED.

DALE W. WEAVER - RETROACTIVE TEMPORARY PROMOTION AND BACK PAY AND OVERTIME PAY FOR STANDBY DUTY:

THIS DECISION IS IN RESPONSE TO TWO DIFFERENT CLAIMS SUBMITTED BY DALE W. WEAVER, REPRESENTED BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE), FOR A RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY AND FOR STANDBY DUTY DIFFERENTIAL PAY. WE WILL DISCUSS EACH OF THE CLAIMS SEPARATELY.

RETROACTIVE TEMPORARY PROMOTION AND BACK PAY

THE FIRST MATTER IS THE APPEAL OF OUR CLAIMS DIVISION SETTLEMENT, DATED MARCH 26, 1980, DENYING MR. WEAVER'S CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD THAT HE PERFORMED HIGHER LEVEL DUTIES. THE QUESTION PRESENTED FOR OUR DECISION IS WHETHER MR. WEAVER HAS PRESENTED SUFFICIENT EVIDENCE TO DOCUMENT THE ALLEGED DETAIL TO AN OFFICIALLY ESTABLISHED POSITION.

MR. WEAVER WAS EMPLOYED BY THE DEPARTMENT OF THE ARMY AS AN ELECTRICIAN, GRADE WG-08, AND HE CLAIMS THAT HE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FROM SEPTEMBER 12, 1976, TO SEPTEMBER 9, 1978, WHEN HE PERFORMED THE DUTIES OF AN ELECTRICIAN, GRADE WG-10. MR. WEAVER SUBMITTED SIGNED STATEMENTS BY EIGHT EMPLOYEES THAT HE PERFORMED GRADE WG- 10 DUTIES 80 PERCENT OF THE TIME. OUR CLAIMS DIVISION DENIED HIS CLAIM BECAUSE ALTHOUGH HE MAY HAVE PERFORMED HIGHER LEVEL DUTIES HE DID NOT SUBMIT EVIDENCE WHICH SHOWED THAT HE WAS DETAILED TO THE HIGHER-GRADE POSITION. ALSO, OUR CLAIMS DIVISION RELIED ON STATEMENTS FROM MR. WEAVER'S IMMEDIATE SUPERVISORS WHICH INDICATED THAT HE WAS NEITHER DETAILED TO NOR PERFORMED THE FULL DUTIES OF THE WG-10 ELECTRICIAN POSITION.

ON APPEAL, MR. WEAVER HAS SUBMITTED AN ARMY INVESTIGATIVE REPORT WHICH SHOWS THAT MR. WEAVER DID IN FACT PERFORM THE DUTIES OF THE WG-10 ELECTRICIAN 80 PERCENT OR MORE OF THE TIME. THIS CONCLUSION IS BASED ON STATEMENTS BY THREE OF HIS SUPERVISORS WHICH INDICATED THAT THEY WERE AWARE THAT MR. WEAVER WAS PERFORMING WG-10 DUTIES MOST OF THE TIME. THE REPORT ALSO INDICATES THAT MR. WEAVER TOLD HIS SUPERVISORS THAT HE WAS PERFORMING HIGHER LEVEL DUTIES BUT THAT THE SUPERVISORS FAILED TO RESPOND TO HIS GRIEVANCE. THE REPORT ALSO MENTIONS THAT THERE IS EVIDENCE THAT MR. WEAVER WAS DOING WG-10 WORK BUT HIS ASSIGNMENTS WERE CHANGED WHEN HE FILED HIS CLAIM.

WE HAVE HELD THAT WHERE AN EMPLOYEE IS DETAILED TO A HIGHER-GRADE POSITION AND THE AGENCY FAILS TO SEEK CIVIL SERVICE COMMISSION APPROVAL TO EXTEND THE DETAIL FOR A PERIOD BEYOND 120 DAYS, THE AGENCY MUST AWARD THE EMPLOYEE A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PRIOD OF THE DETAIL IN EXCESS OF 120 DAYS. TURNER-CALDWELL, 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977). FEDERAL PERSONNEL MANUAL (FPM) BULLETIN NO. 300-40, MAY 25, 1977, WAS ISSUED BY THE CIVIL SERVICE COMMISSION IN ORDER TO PROVIDE ADDITIONAL INFORMATION TO ASSIST AGENCIES IN THE PROPER APPLICATION OF THESE DECISIONS.

PARAGRAPH 4 OF THE FPM BULLETIN DEFINES A DETAIL AS THE TEMPORARY ASSIGNMENT OF AN EMPLOYEE TO A DIFFERENT POSITION WITHIN THE SAME AGENCY FOR A BRIEF, SPECIFIED PERIOD, WITH THE EMPLOYEE RETURNING TO HIS REGULAR DUTIES AT THE END OF THE DETAIL. PARAGRAPH 8F OF THE FPM BULLETIN REQUIRES AGENCIES, IN ACCORDANCE WITH FPM SUPPLEMENT 296-31, BOOK II, SUBCHAPTER S3-13, TO RECORD DETAILS IN EXCESS OF 30 CALENDAR DAYS ON A STANDARD FORM 52 OR OTHER APPROPRIATE FORM AND TO FILE IT ON THE PERMANENT SIDE OF THE EMPLOYEE'S OFFICIAL PERSONNEL FOLDER. HOWEVER, IN THE ABSENCE OF THIS FORM OF DOCUMENTATION, PARAGRAPH 8F RECOGNIZES THAT THE EMPLOYEE MAY PROVIDE OTHER FORMS OF ACCEPTABLE PROOF OF HIS DETAIL. SUCH ACCEPTABLE DOCUMENTATION INCLUDES OFFICIAL PERSONNEL DOCUMENTS OR OFFICIAL MEMORANDA OF ASSIGNMENT, A DECISION UNDER ESTABLISHED GRIEVANCE PROCEDURES, OR A WRITTEN STATEMENT FROM THE PERSON WHO SUPERVISED THE EMPLOYEE DURING THE PERIOD IN QUESTION, OR OTHER MANAGEMENT OFFICIAL FAMILIAR WITH THE WORK, CERTIFYING THAT TO HIS OR HER PERSONAL KNOWLEDGE THE EMPLOYEE PERFORMED THE DUTIES OF THE PARTICULAR ESTABLISHED, CLASSIFIED POSITION FOR THE PERIOD CLAIMED.

AS INDICATED ABOVE, ALTHOUGH THE ASSIGNMENT OF AN EMPLOYEE TO A PARTICULAR HIGHER-GRADE POSITION NEED NOT BE FORMALLY DOCUMENTED, THERE MUST BE OFFICIAL RECOGNITION OF HIS ASSIGNMENT TO AND PERFORMANCE OF THE HIGHER GRADE DUTIES. WHILE STATEMENTS OF COWORKERS AS TO THE NATURE OF THE EMPLOYEE'S DUTIES MAY BE CORROBORATIVE EVIDENCE OF A DETAIL, SUCH EVIDENCE ALONE IS UNSUFFICIENT TO DOCUMENT A DETAIL. WILLIAM L. DEGRAW, B-194369, AUGUST 24, 1979. ON THE OTHER HAND, OFFICIAL RECOGNITION MAY BE ESTABLISHED BY THE STATEMENTS OF THE EMPLOYEE'S SUPERVISORS OR OTHER MANAGEMENT OFFICIALS INDICATING THAT TO THEIR KNOWLEDGE HE PERFORMED THE DUTIES OF THE HIGHER-GRADE POSITION. ACQUIESCENCE IN HIS PERFORMANCE OF THOSE DUTIES, OR INDUCEMENT BY THOSE OFFICIALS WILL ORDINARILY SUFFICE TO DEMONSTRATE THAT HE WAS INFORMALLY DETAILED. SEE WILLIAM A. BELVIN, B-195557, JANUARY 8, 1980.

IN THIS CASE THE ARMY'S INVESTIGATIVE REPORT REVEALS THAT MR. WEAVER'S SUPERVISORS WERE AWARE THAT HE WAS PERFORMING GRADE WG-10 WORK 80 PERCENT OR MORE OF THE TIME. ALSO THE REPORT SHOWS THAT THEY ALLOWED HIM TO CONTINUE TO PERFORM WG-10 DUTIES UNTIL A CLAIM WAS FILED. THIS EVIDENCE ESTABLISHES THAT MR. WEAVER WAS INFORMALLY DETAILED TO THE WG-10 ELECTRICIAN POSITION.

THEREFORE, MR. WEAVER IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY TO THE WG-10 POSITION BEGINNING 121 DAYS AFTER SEPTEMBER 12, 1976, AND SEPTEMBER 9, 1978.

ACCORDINGLY, OUR CLAIMS DIVISION SETTLEMENT IS OVERRULED.

STANDBY DUTY DIFFERENTIAL PAY

MR. WEAVER, BY HIS AUTHORIZED REPRESENTATIVE, NAGE, HAS ALSO SUBMITTED A CLAIM FOR A 25 PERCENT STANDBY DUTY DIFFERENTIAL PURSUANT TO 5 U.S.C. SEC. 5544. NAGE CLAIMS THAT MR. WEAVER WAS REQUIRED TO REMAIN IN A STANDBY DUTY STATUS 24 HOURS A DAY FOR EVERY DAY OF THE YEAR FROM JUNE 27, 1979, CONTINUING UNTIL THE PRESENT TIME. FOR THE FOLLOWING REASONS, MR. WEAVER'S CLAIM FOR STANDBY DUTY PAY IS DENIED.

THE STATUTE WHICH AUTHORIZES OVERTIME PAY FOR WAGE GRADE EMPLOYEES, 5 U.S.C. SEC. 5544 PROVIDES IN PERTINENT PART:

"(A) AN EMPLOYEE WHOSE PAY IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES UNDER SECTION 5343 OR 5349 OF THIS TITLE, OR BY A WAGE BOARD OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE, IS ENTITLED TO OVERTIME PAY FOR OVERTIME WORK IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK. HOWEVER, AN EMPLOYEE SUBJECT TO THIS SUBSECTION WHO REGULARLY IS REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF HIS POST OF DUTY IN EXCESS OF 8 HOURS A DAY IN A STANDBY OR ON-CALL STATUS IS ENTITLED TO OVERTIME PAY ONLY FOR HOURS OF DUTY, EXCLUSIVE OF EATING AND SLEEPING TIME, IN EXCESS OF 40 A WEEK. ***."

IN INTERPRETING THIS STATUTE, OUR OFFICE AND THE COURT OF CLAIMS HAVE ALLOWED OVERTIME PAY ONLY WHEN THE EMPLOYEES' WHEREABOUTS WERE NARROWLY LIMITED AND HIS ACTIVITY SEVERELY RESTRICTED. HYDE V. UNITED STATES, 209 CT.CL. 746 (NO. 322-73), APRIL 16, 1976; 55 COMP.GEN. 1314 (1976).

MR. WEAVER'S JOB DESCRIPTION STATES THAT HE IS SUBJECT TO EMERGENCY CALL BACK DUTY. HOWEVER, HE HAS FAILED TO SHOW THAT HIS WHEREABOUTS WERE NARROWLY LIMITED OR THAT HIS ACTIVITIES WERE SO RESTRICTED AS TO, FOR EXAMPLE, PREVENT HIM FROM GOING ON VACATIONS. ALSO, HIS REPRESENTATIVE DOES NOT ALLEGE THAT HE WAS EVER CALLED BACK TO WORK FOR AN EMERGENCY. UNDER THESE CIRCUMSTANCES, 5 U.S.C. SEC. 5544 PRECLUDES THE PAYMENT OF OVERTIME PAY TO MR. WEAVER.