B-60819, OCTOBER 31, 1946, 26 COMP. GEN. 289

B-60819: Oct 31, 1946

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IN THE CASE OF A SUBSTITUTE EMPLOYEE WHOSE TOUR OF DUTY OF MORE THAN TWO HOURS' DURATION IS INTERRUPTED BY THE MEAL PERIOD. - A PERIOD OF EMPLOYMENT AFTER THE MEAL PERIOD IS TO BE CONSIDERED AS A CONTINUATION OF DUTY FOR WHICH THE EMPLOYEE ORIGINALLY WAS ORDERED TO REPORT AND NOT AS A SEPARATE EMPLOYMENT. 25 COMP. WHERE THE INTERVAL BETWEEN THE HOURS OF EMPLOYMENT REQUIRED BY THE SCHEDULE OF EMPLOYMENT OF A SUBSTITUTE POSTAL EMPLOYEE DURING HIS DAILY TOUR OF DUTY IS AT SUCH A TIME OR OF SUCH DURATION THAT THE PERIOD FOLLOWING THE INTERVAL REASONABLY MAY NOT BE REGARDED AS A CONTINUATION OF THE ORIGINAL EMPLOYMENT BUT AS A SEPARATE AND DISTINCT PERIOD OF EMPLOYMENT. THE SERVICES OF A SUBSTITUTE POSTAL EMPLOYEE ARE NOT REQUIRED FOR THE TWO HOURS INTERVENING BETWEEN HIS THREE-HOUR FORENOON DUTY PERIOD (7 A.M.

B-60819, OCTOBER 31, 1946, 26 COMP. GEN. 289

COMPENSATION - SUBSTITUTE POSTAL EMPLOYEES - LUNCH PERIOD EFFECT ON MINIMUM EMPLOYMENT GUARANTEE FOR THE PURPOSE OF APPLYING THE PROVISIONS OF SECTION 2 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, GUARANTEEING AT LEAST TWO HOURS' EMPLOYMENT FOR SUBSTITUTE EMPLOYEES WHO REPORT FOR DUTY PURSUANT TO AN OFFICIAL ORDER, IN THE CASE OF A SUBSTITUTE EMPLOYEE WHOSE TOUR OF DUTY OF MORE THAN TWO HOURS' DURATION IS INTERRUPTED BY THE MEAL PERIOD--- AN ABSENCE FROM DUTY SUCH AS ORDINARILY WOULD OCCUR DURING THE WORKDAY OF A REGULAR EMPLOYEE--- A PERIOD OF EMPLOYMENT AFTER THE MEAL PERIOD IS TO BE CONSIDERED AS A CONTINUATION OF DUTY FOR WHICH THE EMPLOYEE ORIGINALLY WAS ORDERED TO REPORT AND NOT AS A SEPARATE EMPLOYMENT. 25 COMP. GEN. 232, AMPLIFIED. WHERE THE INTERVAL BETWEEN THE HOURS OF EMPLOYMENT REQUIRED BY THE SCHEDULE OF EMPLOYMENT OF A SUBSTITUTE POSTAL EMPLOYEE DURING HIS DAILY TOUR OF DUTY IS AT SUCH A TIME OR OF SUCH DURATION THAT THE PERIOD FOLLOWING THE INTERVAL REASONABLY MAY NOT BE REGARDED AS A CONTINUATION OF THE ORIGINAL EMPLOYMENT BUT AS A SEPARATE AND DISTINCT PERIOD OF EMPLOYMENT, THE EMPLOYEE SHOULD BE COMPENSATED FOR NOT LESS THAN TWO HOURS FOLLOWING EACH TIME HE REPORTS FOR DUTY, PURSUANT TO THE TWO-HOUR MINIMUM EMPLOYMENT GUARANTEE PROVISIONS OF SECTION 2 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945. WHERE, PURSUANT TO A REGULAR DAILY SCHEDULE OF EMPLOYMENT, THE SERVICES OF A SUBSTITUTE POSTAL EMPLOYEE ARE NOT REQUIRED FOR THE TWO HOURS INTERVENING BETWEEN HIS THREE-HOUR FORENOON DUTY PERIOD (7 A.M. TO 10 A.M.) AND ONE-HOUR AFTERNOON DUTY PERIOD (12 NOON TO 1 P.M.), THE INTERVENING TWO-HOUR PERIOD IS TO BE REGARDED AS A LUNCHEON PERIOD AND THE FOLLOWING AFTERNOON PERIOD AS A CONTINUATION OF HIS FORENOON DUTY PERIOD, SO THAT THE TWO-HOUR MINIMUM EMPLOYMENT GUARANTEE PROVISIONS OF SECTION 2 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, ARE INAPPLICABLE TO REQUIRE COMPENSATION FOR MORE THAN ONE HOUR FOR THE AFTERNOON DUTY PERIOD.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, OCTOBER 31, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 23, 1946, REFERENCE 15, AS FOLLOWS:

SECTION 2 OF THE ACT OF JULY 6, 1945, PUBLIC LAW 134, PROVIDES IN PART "* * * THAT ANY CLASSIFIED SUBSTITUTE EMPLOYEE WHO REPORTS FOR DUTY AT ANY POST OFFICE OR OTHER POSTAL UNIT IN COMPLIANCE WITH AN OFFICIAL ORDER SHALL BE EMPLOYED NOT LESS THAN TWO HOURS FOLLOWING THE HOUR AT WHICH SUCH CLASSIFIED SUBSTITUTE EMPLOYEE IS ORDERED TO REPORT.'

1. DOES THE SWING OF THE SUBSTITUTE EMPLOYEE FOR A MEAL PERIOD CONSTITUTE AN ORDER TO REPORT AGAIN UPON THE TERMINATION OF THE MEAL PERIOD, REQUIRING A MINIMUM OF TWO/HOURS'S EMPLOYMENT THEREAFTER?

THIS PROBLEM DIFFERS SOMEWHAT FROM THAT PRESENTED TO YOU IN MY LETTER OF AUGUST 13, 1945, THE REPLY TO WHICH WAS COVERED IN YOUR LETTER OF AUGUST 28, 1945 (B-51710). AS AN EXAMPLE OF THE PROBLEM UPON WHICH THIS QUESTION IS BASED WE HAVE THOUSANDS OF REGULAR CITY DELIVERY CARRIERS WHO ARE EMPLOYED ON FIVE-HOUR SCHEDULES EACH SATURDAY. IN MANY INSTANCES THESE CARRIERS REPORT AT 8:00 A.M. AND WORK UNTIL 12:00 NOON AT WHICH TIME THEY TAKE ONE HOUR OFF FOR LUNCH. THEY THEN RETURN TO WORK AT 1:00 P.M. FINISHING THE DELIVERY OF THEIR MAIL BY 2 O-CLOCK. IN ORDER TO PERMIT CERTAIN CARRIERS TO TAKE SATURDAYS OFF, SUBSTITUTE EMPLOYEES ARE ASSIGNED TO THESE ROUTES EACH SATURDAY ON A ROTATING BASIS, THUS PERMITTING ONE OR MORE REGULAR CARRIERS TO BE OFF EACH SATURDAY. THE SUBSTITUTE EMPLOYED ON SATURDAY WORKS THE SCHEDULE SET UP FOR THE REGULAR CARRIER WHICH, IN THIS EXAMPLE, IS FROM 8:00 A.M. TO 12:00 NOON AND FROM 1:00 TO 2:00 P.M.

2. WHEN A CLASSIFIED SUBSTITUTE EMPLOYEE IS ASSIGNED TO A SPECIFIC SCHEDULE AT THE TIME HE REPORTS FOR DUTY AT THE BEGINNING OF HIS TOUR DOES EACH SUBSEQUENT REPORTING UNDER THIS INITIALLY SPECIFIED TOUR REQUIRE A MINIMUM TWO-HOUR EMPLOYMENT?

IT VERY OFTEN HAPPENS, PARTICULARLY IN SMALLER OFFICES, THAT THE SUBSTITUTE IS EMPLOYED ON A FIXED SCHEDULE IN ACCORDANCE WITH THE NEEDS OF THE SERVICE AT THAT PARTICULAR OFFICE. FOR EXAMPLE, HE MAY BE EMPLOYED EACH DAY FROM 7:00 TO 10:00 IN THE MORNING, FROM 12:00 NOON TO 1:00 P.M. AND FROM 5:00 TO 7:00 IN THE AFTERNOON. THIS IS A REGULAR TOUR OF SIX HOURS PERFORMED EACH DAY BY THE SUBSTITUTE AS THE OFFICE COMPLEMENT IS BASED ON THIS SCHEDULE. IN SUCH INSTANCES IS IT MANDATORY THAT THE SUBSTITUTE BE PAID FOR NOT LESS THAN TWO HOURS FOLLOWING EACH TIME HE REPORTS ON SUCH REGULAR SCHEDULE WHICH, IN THE EXAMPLE GIVEN, WOULD REQUIRE PAYMENT FOR AN ADDITIONAL HOUR FOLLOWING THE TERMINATION OF THE NEED FOR HIS SERVICES AT 1:00 P.M. EACH DAY?

THE DECISION OF AUGUST 28, 1945, B-51710, 25 COMP. GEN. 232, TO WHICH YOU REFER, CONTAINS THE FOLLOWING QUESTION AND ANSWER:

(2) IN ANOTHER EXAMPLE A SUBSTITUTE IS ORDERED TO REPORT AT 1:00 P.M. AND DOES WORK FROM THAT HOUR UNTIL 5:00 P.M.; HE IS THEN ORDERED TO RETURN AGAIN THAT SAME DAY AT 7:00 P.M. FOR POSSIBLY AN HOUR'S WORK. DOES THE ORDER TO REPORT AT 7:00 P.M. CONSTITUTE ANOTHER PERIOD OF EMPLOYMENT TO THE EXTENT THAT THE SUBSTITUTE MUST BE PAID FOR NOT LESS THAN 2 HOURS FOLLOWING 7:00 P.M., IN ADDITION TO THE FOUR HOURS PREVIOUSLY EARNED THAT DAY?

(2) THERE IS NOTHING IN THE STATUTE AUTHORIZING A COMBINATION OF TWO SEPARATE AND DISTINCT PERIODS OF EMPLOYMENT OF NOT LESS THAN TWO HOURS WITHIN A PERIOD OF 24 HOURS. IF A SUBSTITUTE EMPLOYEE BE RELEASED FROM DUTY AND REQUIRED TO REPORT BACK FOR DUTY LATER IN THE DAY, HE IS PUT TO EXACTLY THE SAME TROUBLE OR INCONVENIENCE IN REPORTING PURSUANT TO THE SECOND ORDER AS HE EXPERIENCED INCIDENT TO REPORTING PURSUANT TO THE FIRST ORDER DURING THE SAME DAY. THEREFORE, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

IN LINE WITH THE REASONING OF THAT DECISION, THE MEAL PERIOD DURING WHICH HE IS NOT EMPLOYED ORDINARILY WOULD NOT PUT THE CLASSIFIED SUBSTITUTE EMPLOYEE TO ANY ADDITIONAL TROUBLE OR INCONVENIENCE; NEITHER WOULD IT CONSTITUTE A SEPARATE AND DISTINCT PERIOD OF EMPLOYMENT. IT IS AN ABSENCE FROM DUTY SUCH AS ORDINARILY WOULD OCCUR DURING THE WORKDAY OF A REGULAR EMPLOYEE. THEREFORE, THE HOUR OF EMPLOYMENT AFTER THE MEAL PERIOD SHOULD BE CONSIDERED AS A CONTINUATION OF THE DUTY FROM WHICH THE CLASSIFIED SUBSTITUTE EMPLOYEE ORIGINALLY WAS ORDERED TO REPORT. ACCORDINGLY, QUESTION ONE IS ANSWERED IN THE NEGATIVE.

THE ANSWER TO THE SECOND QUESTION PRESENTED WOULD DEPEND UPON THE FACTS IN EACH PARTICULAR CASE. IF THE INTERVAL BETWEEN THE HOURS OF EMPLOYMENT REQUIRED BY THE SCHEDULE OF EMPLOYMENT DURING THE TOUR OF DUTY IS AT SUCH A TIME OR IS OF SUCH DURATION THAT THE PERIOD WHICH FOLLOWS THE INTERVAL REASONABLY MAY NOT BE REGARDED AS A CONTINUATION OF THE ORIGINAL PERIOD OF EMPLOYMENT, BUT MUST BE REGARDED AS A SEPARATE AND DISTINCT PERIOD OF EMPLOYMENT, INVOLVING EXACTLY THE SAME TROUBLE AND INCONVENIENCE TO THE EMPLOYEE IN REPORTING, THEN IT APPEARS THAT THE EMPLOYEE SHOULD BE EMPLOYED FOR NOT LESS THAN TWO HOURS FOLLOWING EACH TIME THAT HE IS DIRECTED TO REPORT.

HAVING REGARD, IN THE EXAMPLE GIVEN, FOR THE REGULARITY OF THE SCHEDULE, THE HOUR OF THE FIRST REPORTING FOR DUTY, AND THE EMPLOYMENT THEREAFTER, THE TWO HOURS INTERVENING BETWEEN THE FORENOON DUTY PERIOD AND THE FIRST AFTERNOON DUTY PERIOD REASONABLY MAY BE REGARDED AS A LUNCHEON PERIOD AND THE EMPLOYMENT FROM 12 NOON TO 1 P.M. AS A CONTINUATION OF THE ORIGINAL PERIOD OF MORNING EMPLOYMENT. ACCORDINGLY, IN RESPECT OF QUESTION 2, IT WOULD NOT BE NECESSARY TO EMPLOY AND COMPENSATE THIS CLASSIFIED SUBSTITUTE EMPLOYEE FOR MORE THAN ONE HOUR IMMEDIATELY FOLLOWING 12 NOON.