B-115687, MAR. 7, 1961

B-115687, MAR. 7, 1961

TO AUTHORIZED CERTIFYING OFFICER, BUREAU OF FINANCE, POST OFFICE DEPARTMENT:

YOUR LETTER OF FEBRUARY 28, 1961, REFERENCE AIR:LO, REQUESTS OUR DECISION WHETHER THE VOUCHER FOR $19.93 SUBMITTED, COVERING NIGHT DIFFERENTIAL FOR THE PERIOD DECEMBER 13, 1959, THROUGH FEBRUARY 6, 1960, MAY LAWFULLY BE CERTIFIED FOR PAYMENT TO THE INVOLVED EMPLOYEE UNDER THE PROVISIONS OF 5 U.S.C. 921, UPON THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE EMPLOYEE HOLDS THE POSITION W.B.-4, $2.16 PER HOUR. DURING THE INVOLVED PERIOD HE WAS CONSIDERED SUBJECT TO THE DEPARTMENT'S REGULARLY SCHEDULED TOUR OF DUTY, 8:45 A.M. TO 5:15 P.M., MONDAY THROUGH FRIDAY. ADMINISTRATIVELY, HE HAS NOT BEEN PAID NIGHT DIFFERENTIAL BECAUSE HE HAD NO SPECIAL REGULAR TOUR OF DUTY WHICH EXPRESSLY STATED THAT IT INCLUDED SERVICES AFTER 6:00 P.M. HOWEVER, AS A CHAUFFEUR HE WAS GIVEN TO UNDERSTAND, AND HE SO UNDERSTOOD, THAT HE WAS NOT FREE TO LEAVE UNTIL HE WAS RELEASED BY THE PROPER OFFICIAL. HE THEREFORE CONTENDS HIS DAILY REGULARLY SCHEDULED TOUR OF DUTY DID NOT END UNTIL HE WAS RELEASED, WHICH TIME VARIED AS SHOWN BY TABULATIONS ACCOMPANYING VOUCHER. THOSE TABULATIONS SHOW 92 3/4 HOURS WORKED DURING THE PERIOD DECEMBER 13, 1959, THROUGH FEBRUARY 6, 1960, AFTER 6:00 P.M. THE TABULATIONS ALSO SHOW THAT SUCH TIME WAS NOT REGULAR IN THAT IT DID NOT OCCUR ON THE SAME DAYS AND IN THE SAME AMOUNTS.

THE EMPLOYEE CLAIMS THAT IN ACCORDANCE WITH JUAN AVILES ET AL. V. UNITED STATES AND JOHN FRANKLIN MCMAHON ET AL. V. UNITED STATES, CT.CLS.NOS. 278 -56 AND 3-57, DECIDED OCTOBER 5, 1960, HE IS ENTITLED TO NIGHT DIFFERENTIAL.

5 U.S.C. 921 (A) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ANY REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF SIX O-CLOCK POST MERIDIAN AND SIX O-CLOCK ANTEMERIDIAN * * * SHALL BE CONSIDERED NIGHT WORK * * * AND ANY OFFICER OR EMPLOYEE PERFORMING SUCH WORK TO WHOM THIS SUBCHAPTER APPLIES SHALL BE COMPENSATED FOR SUCH WORK AT HIS BASIC RATE OF COMPENSATION PLUS PREMIUM COMPENSATION AMOUNTING TO 10 PERCENTUM OF SUCH RATE * * *.'

5 U.S.C. 902 (C) PROVIDES IN PERTINENT PART AS FOLLOWS:

"* * * AND THIS CHAPTER, EXCEPT SECTIONS 913 * * * OF THIS TITLE, SHALL NOT APPLY TO EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE.'

FROM THE FOREGOING PROVISIONS OF LAW IT WILL BE SEEN THAT WAGE BOARD EMPLOYEES ARE EXEMPT FROM THE APPLICATION OF 5 U.S.C. 921. WE ALSO POINT OUT THAT THE AVILES AND MCMAHON CASES REFERRED TO ABOVE CONCERNED THE APPLICATION OF 5 U.S.C. 921, TO WHICH THE EMPLOYEES INVOLVED WERE SUBJECT AND UNDER WHICH THE COURT OF CLAIMS FOUND THEY WERE ENTITLED TO PAYMENT OF NIGHT DIFFERENTIAL. CONSEQUENTLY, THE REFERRED-TO CASES WOULD HAVE NO APPLICATION HERE.

5 U.S.C. 1082 (7) READS, IN PERTINENT PART, AS FOLLOWS:

"* * * EMPLOYEES IN RECOGNIZED TRADES OR CRAFTS, OR OTHER SKILLED MECHANICAL CRAFTS, OR IN UNSKILLED, SEMI-SKILLED, SKILLED MANUAL-LABOR OCCUPATIONS * * * WHOSE COMPENSATION SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES; * * *"

PAYMENT OF NIGHT DIFFERENTIAL TO WAGE BOARD EMPLOYEES IS GOVERNED BY THE APPLICABLE WAGE BOARD AGREEMENT OR REGULATIONS EXISTING UNDER THE FOREGOING STATUTORY PROVISION. NOTHING HAS BEEN FURNISHED TO SHOW WHETHER UNDER THE APPLICABLE AGREEMENT OR REGULATIONS NIGHT DIFFERENTIAL IS OR IS NOT AUTHORIZED.

UPON THE PRESENT RECORD NO BASIS EXISTS FOR CERTIFYING THE VOUCHER FOR PAYMENT.