B-167322, OCT. 31, 1969

B-167322, OCT. 31, 1969

COMPENSATION--OVERTIME--UNCOMMON TOURS OF DUTY GENERAL SERVICES ADMINISTRATION (GSA) WAGE BOARD EMPLOYEE, ASSIGNED TO "FOURTH SHIFT" WITH WORK HOURS VARYING FROM WEEK TO WEEK, IS NOT ENTITLED TO OVERTIME COMPENSATION UNLESS SUCH WORK EXCEEDS 8 HOURS DAILY OR 40 HOURS WEEKLY AND, WHILE PROVISIONS OF 5 U.S.C. 6102 REGARDING "REGULAR WORK HOURS" ARE NOT APPLICABLE TO WAGE BOARD EMPLOYEES, GSA HAS ADOPTED PROVISIONS FOR APPLICATION TO ITS WAGE BOARD EMPLOYEES AND DETERMINED ADMINISTRATIVELY THAT FOURTH SHIFT IS ESSENTIAL TO PROVIDE CONTINUOUS COVERAGE OF FEDERAL BUILDINGS BUT, SINCE ATTENDANCE RECORDS PROVIDED BY GSA ARE INCONSISTENT WITH EMPLOYEE'S SCHEDULES, GSA IS BEING ADVISED TO PAY ADDITIONAL COMPENSATION PROVIDED IT CONCURS WITH PERIODS OF OVERTIME WORKED AS SHOWN ON EMPLOYEE'S SCHEDULES.

TO MR. DAVID M. HENDRICKS:

WE REFER TO YOUR LETTER OF JULY 28, 1969, IN FURTHER REFERENCE TO YOUR CLAIM FOR OVERTIME COMPENSATION AS A WAGE BOARD EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 6, KANSAS CITY, MISSOURI, DURING THE PERIOD MARCH 29, 1964, THROUGH JANUARY 9, 1968. THE CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT OF JUNE 11, 1969, AND YOU NOW HAVE SUBMITTED GRAPHIC ILLUSTRATIONS OF THE HOURS WORKED DURING THE YEARS 1964 THROUGH 1967 AND HAVE PRESENTED NUMEROUS QUESTIONS CONCERNING THE VALIDITY OF THE PRACTICE OF GSA IN SCHEDULING WORK ASSIGNMENTS, PARTICULARLY IN THE CASE OF EMPLOYEES ASSIGNED TO THE SO CALLED "FOURTH SHIFT" .

AT THE OUTSET IT IS NECESSARY TO POINT OUT THE "REGULAR HOURS OF WORK" REFERRED TO IN 5 U.S.C. 6102, WHICH IS APPLICABLE TO WAGE BOARD EMPLOYEES, MEANS, IN THE OPINION OF THIS OFFICE, NOTHING MORE THAN THOSE HOURS OF WORK, NOT IN EXCESS OF 8 PER DAY OR 40 PER WEEK, FOR WHICH BASIC COMPENSATION IS PAYABLE AS DISTINGUISHED FROM THOSE ADDITIONAL HOURS PER DAY OR PER WEEK FOR WHICH OVERTIME RATES ARE PAYABLE. WE DO NOT CONSTRUE THE TERM "REGULAR HOURS OF WORK" AS REQUIRING THAT AN EMPLOYEE'S BASIC WORKWEEK CONSIST OF THE SAME HOURS EACH DAY OR THE SAME DAYS EACH WEEK.

THE PROVISIONS CONTAINED IN 5 U.S.C. 6101 DO NOT APPLY TO WAGE BOARD EMPLOYEES. HOWEVER, WE UNDERSTAND THAT AS A MATTER OF PRACTICE GSA HAS, IN EFFECT, ADOPTED THE PROVISIONS IN 6101 FOR APPLICATION TO ITS WAGE BOARD EMPLOYEES. FOR CONVENIENCE THOSE PROVISIONS ARE QUOTED AS FOLLOWS:

"SEC. 6101. BASIC 40-HOUR WORKWEEK; WORK SCHEDULES; REGULATIONS

"/A) (1) * * * * * *

"/2) THE HEAD OF EACH EXECUTIVE AGENCY, MILITARY DEPARTMENT AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL---

"/A) ESTABLISH A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS FOR EACH FULL- TIME EMPLOYEE IN HIS ORGANIZATION; AND

"/B) REQUIRE THAT THE HOURS OF WORK WITHIN THAT WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN 6 OF ANY 7 CONSECUTIVE DAYS.

"/3) EXCEPT WHEN THE HEAD OF AN EXECUTIVE AGENCY, A MILITARY DEPARTMENT, OR OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA DETERMINES THAT HIS ORGANIZATION WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THAT COSTS WOULD BE SUBSTANTIALLY INCREASED, HE SHALL PROVIDE, WITH RESPECT TO EACH EMPLOYEE IN HIS ORGANIZATION, THAT---

"/A) ASSIGNMENTS TO TOURS OF DUTY ARE SCHEDULED IN ADVANCE OVER PERIODS OF NOT LESS THAN 1 EEK;

"/B) THE BASIC 40-HOUR WORKWEEK IS SCHEDULED ON 5 DAYS, MONDAY THROUGH FRIDAY WHEN POSSIBLE, AND THE 2 DAYS OUTSIDE THE BASIC WORKWEEK ARE CONSECUTIVE;

"/C) THE WORKING HOURS IN EACH DAY IN THE BASIC WORKWEEK ARE THE SAME;

"/D) THE BASIC NONOVERTIME WORKDAY MAY NOT EXCEED 8 HOURS;

"/E) THE OCCURRENCE OF HOLIDAYS MAY NOT AFFECT THE DESIGNATION OF THE BASIC WORKWEEK; AND

"/F) BREAKS IN WORKING HOURS OF MORE THAN 1 HOUR MAY NOT BE SCHEDULED IN A BASIC WORKDAY.'

YOU WILL NOTE THAT THE PROVISIONS OF (A) (2) QUOTED ABOVE ARE MANDATORY, WHEREAS THE PROVISIONS IN (A) (3) ARE FOR APPLICATION EXCEPT WHEN THE HEAD OF AN AGENCY DETERMINES THAT HIS ORGANIZATION WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THAT COSTS WOULD BE SUBSTANTIALLY INCREASED IF SUCH PROVISIONS ARE APPLIED.

WE UNDERSTAND THAT GSA ESTABLISHED THE FOURTH SHIFT, WHICH IS AN UNCOMMON TOUR OF DUTY, BASICALLY AS A RELIEF GROUP. A FOURTH SHIFT EMPLOYEE WILL RELIEVE EMPLOYEES ON THE 3 BASIC DUTY SHIFTS OF 8 HOURS DURATION. IT HAS BEEN DETERMINED ADMINISTRATIVELY THAT THIS SHIFT IS ESSENTIAL TO ECONOMIC OPERATION OF THE AGENCY AND IS REQUIRED TO PROVIDE CONTINUOUS COVERAGE IN THE OPERATIONS OF FEDERAL BUILDINGS. IN SUCH CONNECTION, THE ADMINISTRATION REPORTS THAT SUCH UNCOMMON TOURS HAVE BEEN DETERMINED TO BE ESSENTIAL TO THE OPERATION OF THE AGENCY AND MUST BE CONTINUED. THE REPORT SAYS THAT TO DO OTHERWISE WOULD BE UNECONOMICAL IN THAT ADDITIONAL MECHANICS AND FUNDS WOULD BE REQUIRED. IT IS CLEAR THAT UNDER THE STATUTE (6101 (A) (3) (, AS ADMINISTRATIVELY ADOPTED, THAT THE ADMINISTRATOR OF GSA HAS THE AUTHORITY TO DETERMINE FOR WAGE BOARD EMPLOYEES THAT EXCEPTIONS TO THE VARIOUS REQUIREMENTS SET FORTH IN CLAUSES (A) THROUGH (F) OF PARAGRAPH (3) ARE NECESSARY IN THE GOVERNMENT'S INTEREST. IT IS EQUALLY CLEAR FROM THE INFORMATION BEFORE THIS OFFICE THAT THE ADMINISTRATOR HAS SO DETERMINED. SUCH DETERMINATION IS A MATTER WITHIN THE JURISDICTION OF THE AGENCY HEAD AND NOT THE GENERAL ACCOUNTING OFFICE. THUS, WE MUST CONCLUDE THAT A FAILURE ON THE PART OF THE REGIONAL OFFICE IN WHICH YOU WERE EMPLOYED TO SCHEDULE WORK IN ACCORDANCE WITH THE CLAUSES (A) THROUGH (F) OF PARAGRAPH (3) DOES NOT CONSTITUTE A BASIS FOR PAYMENT OF OVERTIME COMPENSATION IN YOUR CASE AND THE CASES OF EMPLOYEES SIMILARLY SITUATED.

WE HAVE EXAMINED CAREFULLY THE ENCLOSURES TRANSMITTED WITH YOUR LETTER AND WE FIND THAT IN MOST INSTANCES THERE APPEARS NO BASIS FOR THE PAYMENT OF OVERTIME COMPENSATION. THE SPECIFIC SITUATIONS HEREINAFTER DISCUSSED COVER PERTINENT ITEMS FOR THE YEAR 1964 TO WHICH YOU REFER. IN SITUATIONS SUCH AS THAT TO WHICH YOU REFER ON PAGE 2 OF YOUR LETTER RELATING TO P3, WHEN ON FRIDAY, FEBRUARY 7, THE ADMINISTRATIVE OFFICE CHANGED THE HOURS OF YOUR WORKDAY FROM 7 A.M. -- 3 P.M. TO 11 P.M. FRIDAY TO 7 A.M. THE FOLLOWING MORNING (SATURDAY) WE DO NOT CONSIDER THAT SUCH CHANGE CONSTITUTES A BASIS FOR THE GRANTING OF COMPENSATORY TIME IN LIEU OF THE PAYMENT OF OVERTIME COMPENSATION AS CONTENDED BY YOU. ACCORDINGLY, AND SINCE YOU WORKED NO MORE THAN 40 HOURS IN THE WORKWEEK COMMENCING SUNDAY AND ENDING SATURDAY, AND NO MORE THAN 8 HOURS ON ANY DAY IN SUCH WORKWEEK, THERE IS NO BASIS FOR THE PAYMENT OF OVERTIME COMPENSATION.

AT THIS POINT WE MIGHT ADD THAT AFTER AN EXAMINATION OF THE INFORMATION PRESENTED HERE IT APPEARS TO US THAT THE BASIC ADMINISTRATIVE WORKWEEK FOR GENERAL SERVICES EMPLOYEES IS THE CALENDAR WEEK, SUNDAY THROUGH SATURDAY. THE FACT THAT AN EMPLOYEE MAY NOT WORK THE SAME HOURS EACH DAY DOES NOT ENTITLE HIM TO ANY ADDITIONAL BENEFITS SO LONG AS HE DOES NOT WORK MORE THAN 8 HOURS ON ANY DAY OF 40 HOURS IN ANY WEEK. THIS IS THE SITUATION EVIDENCED BY THE FIRST ADMINISTRATIVE WORKWEEK IN THE 10TH AND 13TH PAY PERIODS, AND THUS THERE WOULD NOT BE ANY ENTITLEMENT TO OVERTIME. HOWEVER, THE RECORDS FURNISHED BY YOU INDICATE THAT IN THE SECOND ADMINISTRATIVE WORKWEEK OF THE 13TH PAY PERIOD THE AGENCY VIOLATED THE PROVISIONS IN 5 U.S.C. 6101 (A) (2) (B) IN FAILING TO ESTABLISH THE WORK PERIOD OVER A PERIOD CONSISTING OF NOT MORE THAN 6 OF 7 CONSECUTIVE DAYS. HOWEVER, THERE IS NO BASIS FOR PAYMENT FOR THE 7TH DAY'S WORK AT TIME AND ONE-HALF SINCE NO MORE THAN 40 HOURS WORK WAS PERFORMED IN A WEEK, NOR 8 HOURS IN ANY PARTICULAR DAY. THE SAME APPEARS TO BE TRUE IN THE CASE OF THE 14TH PAY PERIOD. CONCERNING THE 15TH PAY PERIOD, IT APPEARS FROM THE RECORDS SUBMITTED BY YOU THAT THE AGENCY WAS IN ERROR IN SCHEDULING ONLY 32 HOURS IN THE FIRST ADMINISTRATIVE WORKWEEK AND THAT THE 8 HOURS WERE NOT MADE UP UNTIL THE SECOND WORKWEEK IN THE 16TH PAY PERIOD WHEREIN YOU APPARENTLY WORKED 48 HOURS. THUS, IT APPEARS FROM THOSE RECORDS THAT YOU WOULD BE ENTITLED TO OVERTIME COMPENSATION RATHER THAN STRAIGHT TIME COMPENSATION FOR THE EXTRA 8 HOURS WORKED IN THE SECOND ADMINISTRATIVE WORKWEEK OF THE 16TH PAY PERIOD. IN PAY PERIODS 20 AND 21, SINCE YOU WORKED NEITHER MORE THAN 40 HOURS PER WEEK NOR 8 HOURS ON ANY DAY, WE FIND NO BASIS FOR PAYMENT OF OVERTIME. A SIMILAR CONCLUSION IS REQUIRED WITH RESPECT TO PAY PERIOD 22. WE FIND FROM THE RECORDS SUBMITTED BY YOU THAT AN ERROR OCCURRED IN SCHEDULING THE WORK IN THE SECOND ADMINISTRATIVE WORKWEEK OF PAY PERIOD 23 IN THAT ONLY 33 HOURS OF WORK WAS SCHEDULED, THE EXTRA 7 HOURS BEING INCLUDED IN THE SECOND WORKWEEK OF PAY PERIOD 24 WHEN YOU WORKED 47 HOURS. THUS, 7 OF THOSE HOURS WORKED IN THE SECOND ADMINISTRATIVE WORKWEEK OF THE 24TH PAY PERIOD WOULD APPEAR TO BE COMPENSABLE AT THE OVERTIME RATE RATHER THAN AT THE STRAIGHT TIME RATE.

WE SEE NO BASIS FOR PAYMENT OF CALL-BACK OVERTIME FOR 2 HOURS ON SATURDAY, DECEMBER 12, SINCE THE 1 HOUR WORKED BETWEEN 11 P.M. AND 12 MIDNIGHT WAS NOT OVERTIME WORK AND APPARENTLY WAS SCHEDULED IN ADVANCE.

GSA HAS FORWARDED TIME AND ATTENDANCE RECORDS WHICH APPEAR TO BE INCONSISTENT WITH THE INFORMATION SET FORTH IN YOUR SCHEDULES. THEREFORE, WE ARE FORWARDING A COPY OF THIS LETTER TO GSA AND SUGGESTING THAT YOU CONTACT THAT ADMINISTRATION WITH A VIEW TOWARD OBTAINING AN AGREEMENT ON THE FACTS AS TO WHEN AND WHETHER OVERTIME WAS WORKED. IN SUCH CONNECTION THE ADMINISTRATION IS BEING ADVISED TO PAY ADDITIONAL COMPENSATION IN ACCORDANCE WITH A COPY OF THIS LETTER, PROVIDED IT CONCURS IN THE SCHEDULES YOU TRANSMITTED HERE CONCERNING THE OVERTIME WORKED DURING PAY PERIODS 16 AND 24 AS SHOWN ON YOUR SCHEDULES. A COPY OF OFFICE LETTER OF TODAY TO MR. JEFFREY HILLELSON, REGIONAL ADMINISTRATOR, GSA, IS ENCLOSED. MR. JEFFREY P. HILLELSON REGIONAL ADMINISTRATOR GENERAL SERVICES ADMINISTRATION, REGION 6 1500 EAST BANNISTER ROAD KANSAS CITY, MISSOURI 64131

DEAR MR. HILLELSON:

WE REFER TO YOUR LETTER OF SEPTEMBER 26, 1969, CONCERNING THE CASE OF DAVID M. HENDRICKS AND OTHER EMPLOYEES OF YOUR REGION. IN CONNECTION THEREWITH, WE ARE ENCLOSING A COPY OF OFFICE LETTER OF TODAY TO MR. HENDRICKS. WE NOTE THAT CERTAIN RECORDS FURNISHED THIS OFFICE BY YOUR REGION APPEAR TO BE INCONSISTENT WITH THE INFORMATION SHOWN ON RECORDS FURNISHED BY MR. HENDRICKS WHICH APPARENTLY WERE OBTAINED FROM THE FEDERAL RECORDS CENTER, KANSAS CITY, MISSOURI. WE HAVE SUGGESTED THAT MR. HENDRICKS GET IN TOUCH WITH THE GENERAL SERVICES ADMINISTRATION (GSA) AND RESOLVE ANY CONFLICTS THAT MAY EXIST IN THE RECORDS AS TO THE TIME ACTUALLY WORKED BY THE EMPLOYEES IN QUESTION, AND THAT IF THE INFORMATION CONTAINED IN THE RECORDS FORWARDED HERE BY MR. HENDRICKS, COPIES OF WHICH HAVE BEEN FURNISHED YOUR OFFICE AS ENCLOSURES TO OUR LETTER OF AUGUST 21, 1969, B-167322, ARE CORRECT THAT MR. HENDRICKS BE PAID OVERTIME COMPENSATION TO THE EXTENT INDICATED IN THE ATTACHED COPY OF OFFICE LETTER OF TODAY TO MR. HENDRICKS. IF COMPARABLE SITUATIONS OCCURRED WITH RESPECT TO ANY OF THE OTHER EMPLOYEES INVOLVED, THEY TOO SHOULD BE PAID OVERTIME ON SUCH OCCASIONS. IT IS REQUESTED FURTHER THAT WE BE ADVISED OF YOUR FINAL DETERMINATIONS IN THESE MATTERS.