B-155048, NOV. 25, 1964

B-155048, NOV. 25, 1964

TO MR. ROGER E. BERGMAN:

YOUR LETTER OF AUGUST 17, 1964, REQUESTS OUR ADVICE WHETHER YOU MAY BE REQUIRED TO ATTEND TRAINING COURSES OUTSIDE OF YOUR REGULAR TOUR OF DUTY WITHOUT PAY WHILE EMPLOYED AS AN APPRENTICE AT THE MARE ISLAND NAVAL SHIPYARD.

THE NAVY APPRENTICE TRAINING PROGRAM IS DESCRIBED BY THE BUREAU OF SHIPS AS A FOUR-YEAR COMPREHENSIVE DEVELOPMENT TYPE TRAINING PROGRAM THROUGHOUT WHICH THE APPRENTICE RECEIVES INSTRUCTION 100 PERCENT OF HIS TIME. DURING AN APPRENTICESHIP YEAR, THE EMPLOYEE RECEIVES A TOTAL OF 1872 HOURS OF INSTRUCTION WHICH IS APPORTIONED BETWEEN WORKSHOP EXPERIENCE AND CLASSROOM INSTRUCTION. APPROXIMATELY ONE THIRD OF THE RELATED INFORMATION INSTRUCTION PROGRAM IS COMPLETED ON THE EMPLOYEE'S OWN TIME. DURING THE FIRST TWO YEARS, THE APPRENTICE IS SCHEDULED TO ATTEND TWO EVENING CLASSES PER WEEK AT THE APPRENTICE SCHOOL.

PRIOR TO HIS APPOINTMENT, EACH APPRENTICE-APPLICANT IS REQUESTED TO SIGN AN AFFIDAVIT STATING THAT HE FULLY UNDERSTANDS THAT HE WILL BE REQUIRED TO ATTEND CERTAIN SCHEDULED EVENING CLASSES ON HIS OWN TIME. ALTHOUGH SUCH AGREEMENT IS REFERRED TO AS A "CONDITION OF EMPLOYMENT," THE BUREAU OF SHIPS REPORTS THAT NO APPLICANT HAS BEEN OR WOULD BE DENIED ENTRANCE TO THE APPRENTICESHIP PROGRAM BECAUSE OF FAILURE OR REFUSAL TO SIGN SUCH AGREEMENT. MOREOVER, NO EMPLOYEE HAS EVER BEEN FORMALLY DISCIPLINED FOR FAILURE TO ATTEND THE AFTER-HOURS CLASSES. HOWEVER, IN VIEW OF SUCH REQUIREMENT, YOU QUESTION WHETHER ANY COMPENSATION IS PAYABLE FOR THE CLASSES ATTENDED OUTSIDE OF YOUR REGULAR DAILY TOUR OF DUTY.

AS A WAGE BOARD EMPLOYEE ANY WORK PERFORMED BY YOU IN EXCESS OF EIGHT HOURS PER DAY OR FORTY HOURS PER WEEK MUST BE COMPENSATED AT THE OVERTIME RATE. SEE 5 U.S.C. 673C RELATING TO OVERTIME FOR WAGE BOARD EMPLOYEES. THEREFORE, OUR DISCUSSION WILL BE CONFINED TO THE ISSUE OF WHETHER ANY OVERTIME COMPENSATION IS DUE. IN THAT REGARD, SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, APPROVED JULY 7, 1958, 5 U.S.C. 2309, PROVIDES AS FOLLOWS:

"THE HEAD OF EACH DEPARTMENT IN ACCORDANCE WITH REGULATIONS ISSUED BY THE COMMISSION UNDER AUTHORITY OF SECTION 2305 (A) (8) OF THIS TITLE IS AUTHORIZED, FROM FUNDS APPROPRIATED OR OTHERWISE AVAILABLE TO SUCH DEPARTMENT (1) TO PAY ALL OR ANY PART OF THE SALARY, PAY, OR COMPENSATION (EXCLUDING OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL PAY) OF EACH EMPLOYEE OF SUCH DEPARTMENT WHO IS SELECTED AND ASSIGNED FOR TRAINING BY, IN, OR THROUGH GOVERNMENT FACILITIES OR NON-GOVERNMENT FACILITIES UNDER AUTHORITY OF THIS CHAPTER, FOR EACH PERIOD OF SUCH TRAINING OF SUCH EMPLOYEE * *

THIS OFFICE HAS CONSISTENTLY HELD THAT PREMIUM COMPENSATION MAY NOT BE PAID TO EMPLOYEES FOR TIME SPENT IN COURSES OF TRAINING ESTABLISHED UNDER PROGRAMS INITIATED PURSUANT TO THE ACT OF JULY 7, 1958, UNLESS AN EXCEPTION TO THE PROVISIONS OF SECTION 10 IS ESTABLISHED BY THE UNITED STATES CIVIL SERVICE COMMISSION. SEE 38 COMP. GEN. 262; ID. 363; ID. 404; 39 ID. 453.

PURSUANT TO SECTION 4 (B) (1) OF THE ACT AND THE DELEGATION OF AUTHORITY PRESCRIBED BY SECTION 4 (A) (1) OF EXECUTIVE ORDER NO. 10800, JANUARY 15, 1959, THE CIVIL SERVICE COMMISSION HAS ESTABLISHED CERTAIN EXCEPTIONS TO THE PROHIBITION EXPRESSED IN SECTION 10 OF THE ACT. SEE FEDERAL PERSONNEL MANUAL (1963 ED.), CHAPTER 410, SUBCHAPTER 6, SECTION 6-2, 5 CFR 410.602. WE POINT OUT THAT NONE OF THE ESTABLISHED EXCEPTIONS ARE APPLICABLE TO THE PRESENT CASE.

THE CLASSROOM INSTRUCTION RECEIVED BY YOU AFTER HOURS MUST BE REGARDED AS "TRAINING" WITHIN THE MEANING OF THE RESTRICTION CONTAINED IN SECTION 10 OF THE ACT. IN VIEW THEREOF, OUR OFFICE IS EXPLICITLY PRECLUDED BY LAW FROM AUTHORIZING THE PAYMENT OF OVERTIME COMPENSATION FOR SUCH PERIODS OF TRAINING.