B-246730, Mar 3, 1992

B-246730, Mar 3, 1992

DIGEST: The claims of two former employees who allege that their agency improperly classified them as intermittent workers instead of part-time employees are denied. Though the employees allege that they worked 40 hour weeks with scheduled days off, they produced no evidence that they were assigned specific schedules in advance of the administrative workweek. Further, the agency's decision to hire subsequent workers as full-time employees does not establish that the employees in the instant case had been given advance schedules.

Alvin B. Crawford and John F. Kotzian:

Mr. Alvin B. Crawford and Mr. John F. Kotzian, both former employees at Elmendorf Air Force Base, have jointly appealed our Claims Group's settlements /1/ denying their claims for leave benefits, holiday pay, and step increases they would have earned if they had been classified as part- time employees. The employees allege that the Air Force improperly classified them as intermittent employees, and thus ineligible for the benefits claimed. We sustain the settlements.

Each employee's claim is slightly different and those differences are addressed in the individual settlements. The legal question common to each of their claims is the employees' employment status and that is the only issue raised in their appeal. The employees allege that they were given four-year appointments and worked 40-hour weeks with scheduled days off. Further, they note that the employees now working at the jobs they held are hired as permanent seasonal workers and receive the benefits they now claim.

The record shows that the agency appointed Mr. Kotzian to intermittent positions in each of the years between 1985 and 1987 and appointed Mr. Crawford to intermittent positions In 1981, 1982, 1984, 1985 and 1989. /2/ Mr. Crawford was given a full-time appointment in 1984. In both cases, the work was seasonal, usually lasting three to six months. According to a management official at the Base, the employees worked in an arctic environment in which weather conditions sometimes necessitated working more than one week without a break] however, he stated such periods of continued employment were not regularly scheduled.

Unlike part-time or full-time employees, intermittent employees do not have a "regularly scheduled tour of duty." 5 C.F.R. Sec. 340.401(c) (1991). "Regularly scheduled work" means "work that is scheduled in advance of an administrative workweek under an agency's procedures for establishing workweeks." 5 C.F.R. Sec. 610.102(g).

A tentative schedule subject to change, and which in fact does change during the week, is not a regular schedule. Helen M. Jew, 67 Comp.Gen. 570 (1988). Nor is it sufficient to show that an employee has established a regular pattern of work and actually worked more than 40 hours a week. Mavnard W. Thom son, B-236228.2, Apr. 16, 1991. To prevail in a case such as this, the employee must produce evidence sufficient to counter the administrative determination that he or she was not provided specific schedules in advance. Id., at 3.; James F. Daniels, et al., B-24l337, Feb. 21, 1991.

We do not believe the employees have submitted sufficient evidence to establish that the agency assigned them to specific schedules in advance of the workweek. In fact, the listing of hours worked on the payroll logs for both employees showed that the number of hours worked fluctuated each pay period, from 24 hours to 80 hours, providing no clear pattern which would support their allegation of scheduled 40-hour workweeks. Further, they have not submitted any written schedules, duty logs, or other evidence that shows they were scheduled in advance to work a particular tour of duty. We note, moreover, that the agency's decision to begin hiring repair workers as permanent seasonal workers, which was negotiated with a labor organization, is not relevant. Presumably, these new employees will be assigned to specific tours of duty in advance of the administrative workweek. See 5 U.S.C Sec. 6101 (1988). That policy was not in effect at the time Mr. Crawford and Mr. Kotzian worked, and its subsequent adoption does not mean that they were given such schedules when they worked for the agency. /3/

Accordingly, the disallowance of the employees' claims is sustained.

/1/ Z-2867313-347, October 10, 1991 and z-2867310-347, July 22, 1991, respectively.

/2/ To satisfy the statutory limitation, claims must be received by this Office or the agency involved within six years of the date they accrue. 31 U.S.C. Sec. 3702(b) (1) (1988); 4 C.F.R. Sec. 31.5(a) Since Mr. Crawford's claim was received by his agency on November 28, 1990, we may not consider his claims that arose before November 28, 1984. /3/ The agency report also states that during their employment, Mr. Crawford and Mr. Kotzian were covered by a collective bargaining agreement which included grievance procedures under which they could have grieved their appointment status at any time, but they did not do so.