B-175275, MAY 15, 1973, 52 COMP GEN 794

B-175275: May 15, 1973

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NOTWITHSTANDING NAVY REGULATIONS PROVIDE THAT AN EMPLOYEE ON A TRIAL TRIP TO TEST EQUIPMENT IS CONSIDERED TO BE IN A STANDBY STATUS SINCE THE REGULATIONS ARE INVALID AS THEY DO NOT MEET THE CRITERIA ESTABLISHED IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2. TO THE EFFECT THAT "STANDBY TIME CONSISTS OF PERIODS IN WHICH AN EMPLOYEE IS OFFICIALLY ORDERED TO REMAIN AT OR WITHIN THE CONFINES OF HIS STATION. BY TRAVEL ORDER NUMBER T-027025 YOU WERE DIRECTED TO CONDUCT "POST REPAIR VIB. FOR THE PERIOD OF THAT TEMPORARY DUTY ASSIGNMENT YOU WERE NOT PAID OVERTIME COMPENSATION FOR TIME WHICH YOU ALLEGE TO HAVE PERFORMED STANDBY DUTY IN ACCORDANCE WITH PARAGRAPH A-1C(5) OF CIVILIAN MANPOWER AND MANAGEMENT INSTRUCTION (CMMI) 610.S1 AND PARAGRAPHS 4 AND 5 OF BNSINST 7230.1B.

B-175275, MAY 15, 1973, 52 COMP GEN 794

COMPENSATION - OVERTIME - STANDBY, ETC., TIME - TRIAL VESSEL TRIPS THE SERVICE OF A CIVILIAN EMPLOYEE ASSIGNED ABOARD A VESSEL FOR THE PURPOSE OF CONDUCTING POST REPAIR TESTING VIBRATION SURVEYS OF EQUIPMENT TO DETERMINE THE FEASIBILITY OF THE EQUIPMENT FOR OPERATION IN THE VESSEL DOES NOT CONSTITUTE STANDBY TIME TO ENTITLE THE EMPLOYEE TO THE OVERTIME AUTHORIZED IN 5 U.S.C. 5542, NOTWITHSTANDING NAVY REGULATIONS PROVIDE THAT AN EMPLOYEE ON A TRIAL TRIP TO TEST EQUIPMENT IS CONSIDERED TO BE IN A STANDBY STATUS SINCE THE REGULATIONS ARE INVALID AS THEY DO NOT MEET THE CRITERIA ESTABLISHED IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 610, SUBCHAPTER S1-3D, TO THE EFFECT THAT "STANDBY TIME CONSISTS OF PERIODS IN WHICH AN EMPLOYEE IS OFFICIALLY ORDERED TO REMAIN AT OR WITHIN THE CONFINES OF HIS STATION, NOT PERFORMING ACTUAL WORK BUT HOLDING HIMSELF IN READINESS TO PERFORM ACTUAL WORK WHEN THE NEED ARISES OR WHEN CALLED."

TO JOHN A. CARLSON, MAY 15, 1973:

WE MAKE FURTHER REFERENCE TO YOUR LETTER OF OCTOBER 19, 1972, REGARDING YOUR ENTITLEMENT TO OVERTIME COMPENSATION FOR STANDBY DUTY WHILE ABOARD THE VESSEL USS HEWES.

BY TRAVEL ORDER NUMBER T-027025 YOU WERE DIRECTED TO CONDUCT "POST REPAIR VIB. SURVEYS ON P/M AND HUB; OP. ANT.MTS. NOS. 2-4 AND 2-5 ON USS HEWES" FROM FEBRUARY 7 TO FEBRUARY 8, 1972. FOR THE PERIOD OF THAT TEMPORARY DUTY ASSIGNMENT YOU WERE NOT PAID OVERTIME COMPENSATION FOR TIME WHICH YOU ALLEGE TO HAVE PERFORMED STANDBY DUTY IN ACCORDANCE WITH PARAGRAPH A-1C(5) OF CIVILIAN MANPOWER AND MANAGEMENT INSTRUCTION (CMMI) 610.S1 AND PARAGRAPHS 4 AND 5 OF BNSINST 7230.1B.

THE DEPARTMENT OF THE NAVY'S REGULATION TO WHICH YOU REFER, CMMI 610.S1- A, PROVIDES IN PERTINENT PART AS FOLLOWS:

(5) DUTY ON VESSELS UNDERWAY. EMPLOYEES WILL BE CONSIDERED TO BE IN A STANDBY STATUS WHEN ASSIGNED TO DUTY ABOARD VESSELS ON TRIAL TRIPS. USED HEREIN THE TERM "TRIAL TRIPS" APPLIES TO SHAKEDOWN CRUISES OR OTHER SEA TRIALS WHICH ARE USUALLY OF SHORT DURATION AND MADE SOLELY TO TEST DIFFERENT TYPES OF MATERIAL OR EQUIPMENT IN CONNECTION WITH OVERHAUL, REPAIR, OR INSTALLATION IN ORDER TO DETERMINE THE EFFECTIVENESS OR ACCEPTABILITY OF SUCH COMPONENTS AS THEY AFFECT THE OPERATIONAL NEEDS OF THE SPECIFIC VESSEL. THE EMPLOYEES IN (A) AND (B) BELOW RECEIVE PAYMENT OF NIGHT DIFFERENTIAL FOR ACTUAL WORK OR STANDBY DUTY IN ACCORDANCE WITH THE PROVISIONS OF NCPI 610.7-2.

(A) EMPLOYEES ASSIGNED TO MAKE TRIPS ABOARD VESSELS FOR GENERAL ORIENTATION PURPOSES OR TO CONDUCT STUDIES AND/OR TESTS OF EQUIPMENT OR STRUCTURES FOR THE PURPOSE OF DETERMINING THEIR FEASIBILITY FOR OPERATIONS IN THAT AND OTHER VESSELS ARE CONSIDERED TO BE IN A TRAVEL STATUS. SUCH CASES, APPROPRIATE TEMPORARY DUTY TRAVEL ORDERS SHOULD BE ISSUED.

(B) EMPLOYEES WILL BE CONSIDERED TO BE IN STANDBY STATUS WHEN ON A "TRIAL TRIP" AS DEFINED ABOVE. THE STANDBY STATUS WILL BEGIN AT THE TIME OF EMBARKATION AND END AT THE TIME OF DISEMBARKATION. EMPLOYEES PERFORMING SUCH STANDBY DUTY WILL BE PAID IN ACCORDANCE WITH THE PROVISIONS OF (4) ABOVE.

(6) AUTHORIZATION IN ADVANCE OR APPROVAL. STANDBY DUTY MUST BE ORDERED IN ADVANCE OR APPROVED AFTER IT HAS BEEN PERFORMED, BY THE INDIVIDUALS INDICATED IN CMMI 610.1-1A, IN ORDER TO BE COMPENSABLE.

THE IMPLEMENTING INSTRUCTION OF THE BOSTON NAVAL SHIPYARD, PARAGRAPHS 4 AND 5 OF BNSINST 7230.1B, FURTHER PROVIDES:

4. TRIAL TRIPS. THE TERM "TRIAL TRIPS" APPLIES TO SHAKEDOWN CRUISES OR OTHER SEA TRIALS WHICH ARE USUALLY OF SHORT DURATION AND MADE SOLELY TO TEST DIFFERENT TYPES OF MATERIAL OR EQUIPMENT FOLLOWING OVERHAUL, REPAIR OR INSTALLATION IN ORDER TO DETERMINE THE EFFECTIVENESS OR ACCEPTABILITY OF SUCH COMPONENTS AS THEY AFFECT THE OPERATIONAL NEEDS OF THE SPECIFIC SHIP. THE STANDBY STATUS WILL BEGIN AT THE TIME OF EMBARKATION AND END AT THE TIME OF DISEMBARKATION. FOR TRIAL TRIPS LASTING TWENTY-FOUR HOURS OR LONGER, EMPLOYEES WILL BE PAID UNDER THE TWO-THIRDS RULE AS DEFINED IN SECTION 4-3.E OF REFERENCE (A). FOR TRIAL TRIPS LASTING LESS THAN TWENTY- FOUR HOURS OR FOR ACTUAL WORK PERFORMED FOR MORE THAN SIXTEEN OF THE TWENTY-FOUR HOURS, THEY WILL BE PAID AN HOUR'S BASIC OR OVERTIME PAY, AS APPROPRIATE, FOR EACH HOUR OF STANDBY DUTY, THE SAME AS IF THEY WERE PERFORMING ACTUAL WORK. IN SUCH CASES, TIME ALLOWED FOR SLEEPING AND EATING IS NOT COMPENSATORY.

5. TEMPORARY DUTY INVOLVING TRAVEL. WHEN WORK IS TO BE PERFORMED OUTSIDE THE BOUNDARIES OF THE SHIPYARD OR ITS ANNEXES, EXCLUDING TRIAL TRIPS AS DEFINED ABOVE, TRAVEL ORDERS SHALL BE ISSUED AND THE PROVISIONS OF REFERENCE (B) APPLIED. IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7-2 OF REFERENCE (A), EMPLOYEES ENGAGED IN TEMPORARY DUTY INVOLVING TRAVEL WILL, WHILE TRAVELING, BE ENTITLED TO PAY AS FOLLOWS:

A. GRADED AND UNGRADED EMPLOYEES ARE ENTITLED TO THEIR USUAL RATE OF PAY WHILE PERFORMING TEMPORARY DUTY TRAVEL WITHIN THE HOURS OF THEIR SCHEDULED WORKWEEK.

B. UNGRADED EMPLOYEES, IN ADDITION, ARE ENTITLED TO THEIR USUAL RATE OF PAY FOR HOURS CORRESPONDING TO THEIR REGULAR SHIFT HOURS ON SCHEDULED NONWORKDAYS.

AN INDICATED IN HIS LETTER OF JUNE 19, 1972, ADDRESSED TO YOU, THE COMMANDER, BOSTON NAVAL SHIPYARD, FOUND THAT YOUR ASSIGNMENT ABOARD THE USS HEWES ON FEBRUARY 7 AND 8, 1972, WAS TO CONDUCT VIBRATION SURVEYS OF EQUIPMENT FOR THE PURPOSE OF DETERMINING ITS FEASIBILITY FOR OPERATION IN THE SHIP AND THAT THE CIRCUMSTANCES OF YOUR ASSIGNMENT DID NOT MEET THE CRITERIA FOR STANDBY DUTY SET FORTH IN THE ABOVE-QUOTED INSTRUCTIONS. YOU STATE THAT THIS CONCLUSION AMOUNTS TO AN INVERSION IN INTERPRETATION OF THE ABOVE-QUOTED AUTHORITIES SINCE YOUR FUNCTION ABOARD THE USS HEWES WAS TO CHECK OUT EQUIPMENT IN CONNECTION WITH ITS RECENT REPAIR. YOU POINT OUT THAT PERSONNEL OF ANOTHER DIVISION ASSIGNED TO THE SAME TRIP WERE COMPENSATED FOR STANDBY DUTY UNDER THE ABOVE INSTRUCTONS.

IN VIEW OF THE STATEMENT IN YOUR ORDERS THAT YOUR ASSIGNMENT ABOARD USS HEWES WAS FOR THE PURPOSE OF CONDUCTING POST REPAIR VIBRATION SURVEYS, THERE WOULD APPEAR TO BE A BASIS FOR YOUR VIEW THAT YOU WERE ON A TRIAL TRIP AS DEFINED IN CMMI 610.S1-A1C(5) AND BNSINST 7230.1B. IN THIS REGARD WE UNNDERSTAND THE BOSTON NAVAL SHIPYARD'S ULTIMATE CONCLUSION REGARDING YOUR ENTITLEMENT STEMS FROM THE FACT, NOTWITHSTANDING YOUR ASSIGNMENT MAY HAVE INVOLVED POST REPAIR TESTING, THAT YOU WERE NOT IN FACT REQUIRED TO HOLD YOURSELF IN A POSITION OF READINESS WHILE ABOARD SHIP TO PERFORM ACTUAL WORK IN ACCORDANCE WITH THE DEFINITION OF STANDBY DUTY AS DISCUSSED BELOW.

THE AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION FOR TIME SPENT IN A STANDBY STATUS ON OTHER THAN A REGULAR BASIS DERIVES FROM 5 U.S.C. 5542, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 5542. OVERTIME RATES; COMPUTATION.

(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR (WITH THE EXCEPTION OF AN EMPLOYEE ENGAGED IN PROFESSIONAL OR TECHNICAL ENGINEERING OR SCIENTIFIC ACTIVITIES FOR WHOM THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK AND AN EMPLOYEE WHOSE BASIC PAY EXCEEDS THE MINIMUM RATE FOR GS- 10 FOR WHOM THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK) IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES:

IN EDWARD WILLIAM RAPP V. UNITED STATES, AND WARD ROLAND HAWKINS V. UNITED STATES, 167 CT. CL. 852(1964), THE COURT OF CLAIMS HELD THAT STANDBY DUTY, AS NOW DEFINED IN 5 U.S.C. 5545 AND FOR WHICH PREMIUM COMPENSATON ON AN ANNUAL BASIS IS NOT AUTHORIZED, IS COMPENSABLE AS "HOURS OF WORK" UNDER WHAT IS NOW 5 U.S.C. 5542, SUPRA. THE DEFINITION OF STANDBY DUTY UNDER 5 U.S.C. 5545, WHICH DEFINITION IS ALSO APPLICABLE TO STANDBY DUTY COMPENSABLE UNDER 5 U.S.C. 5542, IS SET FORTH AT FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 610, SUBCHAPTER S1-3D AS FOLLOWS:

*** STANDBY TIME CONSISTS OF PERIODS IN WHICH AN EMPLOYEE IS OFFICIALLY ORDERED TO REMIAN AT OR WITHIN THE CONFINES OF HIS STATION, NOT PERFORMING ACTUAL WORK BUT HOLDING HIMSELF IN READINESS TO PERFORM ACTUAL WORK WHEN THE NEED ARISES OR WHEN CALLED.

THE DEPARTMENT OF THE NAVY'S INSTRUCTION, GMMI 610.S1-A AND BNSINST 7230.1B, ATTEMPT TO DELIENATE WHAT CONSTITUTES STANDBY DUTY IN TERMS OF THE CHARACTERIZATION OF A PARTICULAR TRIP RATHER THAN IN TERMS OF THE INDIVIDUAL EMPLOYEE'S RESPONSIBILITIES, AS CONTEMPLATED BY THE CONTROLLING STATUE. AS IS EVIDENCED BY THE FACTS IN YOUR CASE, THE NAVY'S INSTRUCTIONS ARE OVERLY BROAD IN THAT THEY INCLUDE WITHIN THE DEFINITION OF STANDBY DUTY ASSIGNMENTS WHICH DO NOT MEET THE APPLICABLE CRITERIA SET FORTH IN THE CONTROLLING STATUTES AND BASIC REGULATIONS OF THE CIVIL SERVICE COMMISSION.

THE NAVY IS AUTHORIZED TO ISSUE INSTRUCTIONS DEFINING STANDBY DUTY FOR PARTICULAR PURPOSES ONLY TO THE EXTENT THAT THOSE INSTRUCTIONS ARE IN HARMONY WITH AND DO NOT ALTER, EXTEND OR LIMIT THE STATUTES OR BASIC REGULATIONS BEING ADMINISTERED. 18 COMP. GEN. 285(1938), 36 ID. 111(1956) AND 41 ID. 217(1961). SEE ALSO MANHATTAN GENERAL EQUIPMENT CO. V. COMMISSIONER OF INTERNAL REVENUE, 297 U.S. 129(1936) AND UNITED STATES V. MAXWELL, 278 F.2D 206(1960). THEREFORE, TO THE EXTENT THAT CMMI 610.S1-A AND BNSINST 7230.1B EXTEND THE DEFINITION OF STANDBY DUTY TO INCLUDE ACTIVITY CLEARLY NOT WITHIN THE SCOPE OF 5 U.S.C. 5542, AS INTERPRETED BY DECISIONS OF THE COURT OF CLAIMS AND THIS OFFICE, THOSE INSTRUCTIONS ARE INVALID, 36 COMP. GEN. 111(1956).

WE THEREFORE HOLD THAT SINCE YOUR ASSIGNMENT ABOARD USS HEWES DID NOT REQUIRE YOU TO HOLD YOURSELF IN READINESS TO PERFORM WORK YOU ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR ANY TIME ABOARD SHIP DURING WHICH YOU DID NOT PERFORM ACTUAL WORK. IN REGARD TO THOSE EMPLOYEES WHO YOU INDICATE RECEIVED OVERTIME COMPENSATION FOR STANDBY DUTY ABOARD THE SAME TRIP, WE ASSUME THAT THEY WERE REQUIRED DURING THE CRUISE TO REMAIN IN A STANDBY STATUS, AS DISCUSSED ABOVE.

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