B-154984, JUL. 7, 1965

B-154984: Jul 7, 1965

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WAS NOT PREVENTED FROM WORKING ON THOSE DAYS BECAUSE OF THE CLOSING OF THE RESEARCH CENTER. A QUESTION WAS RAISED WHETHER THE EMPLOYEE SHOULD BE CHARGED ANNUAL LEAVE FOR THE HOLIDAYS IN QUESTION. THE RESEARCH DIRECTOR INDICATED THAT A SCHEDULED TOUR OF DUTY WAS ACTUALLY ESTABLISHED AT THE LABORATORY LEVEL ALTHOUGH NO FORMAL PAPERS TO DOCUMENT THE TRANSACTION WERE PREPARED AND FILED WITH YOUR PAYROLL OFFICE. IN SUPPORT OF THE CONTENTION THAT A SCHEDULED TOUR OF DUTY WAS ESTABLISHED THE RESEARCH DIRECTOR HAS FURNISHED INFORMAL NOTES WHICH WERE GIVEN THE PROJECT LEADER BY THE EMPLOYEE TO SHOW THE SCHEDULE HE WOULD WORK FROM OCTOBER 5 TO DECEMBER 11. YOUR OFFICE WAS FORMALLY NOTIFIED OF THE CHANGE ON APRIL 27.

B-154984, JUL. 7, 1965

TO MR. RANDEL R. COOPER, AUTHORIZED CERTIFYING OFFICER, BUREAU OF MINES:

THIS REFERS TO YOUR LETTER OF JUNE 2, 1965, WITH ENCLOSURES, REQUESTING A DECISION FROM OUR OFFICE AS TO THE PROPRIETY OF GIVING EFFECT RETROACTIVELY TO A CHANGE OF A TOUR OF DUTY UNDER THE CIRCUMSTANCES RELATED BELOW.

ON SEPTEMBER 29, 1964, THE RESEARCH DIRECTOR AT YOUR ALBANY, OREGON,METALLURGY RESEARCH CENTER, APPROVED A BASIC WORKWEEK FOR ONE OF ITS EMPLOYEES CONSISTING OF THE FIRST 40 HOURS HE ACTUALLY WORKED DURING ANY ADMINISTRATIVE WORKWEEK. THE EMPLOYEE DID NOT WORK ON THE FIVE HOLIDAYS OCCURRING BETWEEN NOVEMBER 11, 1964, AND FEBRUARY 22, 1965. WAS NOT PREVENTED FROM WORKING ON THOSE DAYS BECAUSE OF THE CLOSING OF THE RESEARCH CENTER.

A QUESTION WAS RAISED WHETHER THE EMPLOYEE SHOULD BE CHARGED ANNUAL LEAVE FOR THE HOLIDAYS IN QUESTION. THE RESEARCH DIRECTOR INDICATED THAT A SCHEDULED TOUR OF DUTY WAS ACTUALLY ESTABLISHED AT THE LABORATORY LEVEL ALTHOUGH NO FORMAL PAPERS TO DOCUMENT THE TRANSACTION WERE PREPARED AND FILED WITH YOUR PAYROLL OFFICE. IN SUPPORT OF THE CONTENTION THAT A SCHEDULED TOUR OF DUTY WAS ESTABLISHED THE RESEARCH DIRECTOR HAS FURNISHED INFORMAL NOTES WHICH WERE GIVEN THE PROJECT LEADER BY THE EMPLOYEE TO SHOW THE SCHEDULE HE WOULD WORK FROM OCTOBER 5 TO DECEMBER 11, 1964, AND FROM JANUARY 17, 1965, ON. YOUR OFFICE WAS FORMALLY NOTIFIED OF THE CHANGE ON APRIL 27, 1965.

THE INFORMAL NOTES WERE GIVEN FORMAL APPROVAL IN MEMORANDUMS BACK DATED TO OCTOBER 1, 1964, AND JANUARY 4, 1965, AND RECEIVED IN YOUR OFFICE SUBSEQUENT TO AN INQUIRY MADE BY YOUR OFFICE. THOSE MEMORANDUMS PURPORT TO GIVE RETROACTIVE APPROVAL TO A SCHEDULED TOUR OF DUTY AND THUS NEGATE THE ACTION OF SEPTEMBER 29, 1964, APPROVING A BASIC WORKWEEK CONSISTING OF THE FIRST 40 HOURS. THE TIME AND ATTENDANCE REPORTS FURNISHED SHOW THAT THE EMPLOYEE WORKED THE PREDETERMINED TOUR OF DUTY AS SHOWN IN THE INFORMAL NOTES AND MEMORANDUMS FURNISHED BY THE RESEARCH DIRECTOR. YOUR LETTER YOU REFER TO CERTAIN PERIODS WHEN THE EMPLOYEE DID NOT WORK THE PREDETERMINED SCHEDULED HOURS. IT IS NOTED IN THE MEMORANDUMS OF OCTOBER 1, 1964, AND JANUARY 4, 1965, FROM THE RESEARCH DIRECTOR SHOWING THE PREDETERMINED TOURS OF DUTY OF THE EMPLOYEE THAT EXCEPTIONS WERE TO BE MADE TO THE ESTABLISHED HOURS OF DUTY DURING THESE PERIODS--- WITH THE EXCEPTION OF THE PERIOD OCTOBER 18-24, 1964--- BECAUSE OF EXAMINATIONS AND VACATIONS FROM SCHOOL. HOWEVER, WE NOTE HIS HOURS OF WORK DURING THOSE PERIODS WERE 7:30 A.M., TO 4:30 P.M., WITH 1 HOUR OFF FOR LUNCH, MONDAY THROUGH FRIDAY. FOR THE PERIOD OCTOBER 18-24, 1964, THE EMPLOYEE TOOK 8 HOURS OF ANNUAL LEAVE ON A DAY WHEN HE WAS SCHEDULED TO WORK 10 HOURS AND AS A RESULT HE HAD TO WORK 2 EXTRA HOURS ON OTHER DAYS OF THE WEEK TO MAKE UP THE REQUIRED 40 HOURS FOR THAT WEEK.

BUREAU OF MINES REGULATION CONCERNING HOURS OF WORK PROVIDES THAT:

"CHANGES IN OFFICE HOURS AND SCHEDULED TOURS OF DUTY, INCLUDING VARIATIONS IN THE 40-HOUR WORK WEEK OR REGULARLY SCHEDULED OVERTIME, SHALL BE APPROVED IN ADVANCE. EMPLOYEES SHOULD BE NOTIFIED AT LEAST ONE WEEK IN ADVANCE OF CHANGES IN DUTY SCHEDULES. A COPY OF THE AUTHORIZATION SHALL BE SUBMITTED TO THE PAYROLL OFFICE NO LATER THAN THE CLOSE OF BUSINESS OF THE FIRST WORKING DAY OF THE PAY PERIOD.'

THE AUTHORITY FOR THE ESTABLISHMENT OF A BASIC WORKWEEK IS CONTAINED IN SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303, 5 U.S.C. 944. SECTION 604 (A) (1) VESTS AUTHORITY IN THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT TO ESTABLISH A BASIC WORKWEEK OF 40 HOURS AND TO REQUIRE THAT THE HOURS OF WORK IN SUCH WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS.

THE BUREAU OF MINES REGULATION, ABOVE, REQUIRES THAT CERTAIN ADMINISTRATIVE ACTION BE TAKEN IN MAKING CHANGES IN THE WORK SCHEDULE OF EMPLOYEES. THE RECORD ADEQUATELY ESTABLISHES THAT THE RESEARCH DIRECTOR APPROVED IN ADVANCE THE REGULAR WORK HOURS OF THE EMPLOYEE DURING THE PERIODS IN QUESTION.

THEREFORE, AND SINCE THE TIME AND ATTENDANCE REPORTS SHOW THAT THE EMPLOYEE WORKED THE PREDETERMINED WORK SCHEDULE, WE WOULD NOT OBJECT TO YOUR OFFICE GIVING RETROACTIVE EFFECT TO THE SCHEDULED TOURS OF DUTY ESTABLISHED BY FORMAL NOTICE TO YOUR PAYROLL OFFICE ON APRIL 27, 1965.

Oct 29, 2020

Oct 28, 2020

Oct 27, 2020

  • Silver Investments, Inc.
    We dismiss the protest as untimely because it was filed more than 10 days after the protester knew, or should have known, the basis for its protest.
    B-419028

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