B-153107, AUG. 15, 1969

B-153107, AUG. 15, 1969

CIVIL PAY - DAY OF MOURNING DECISION TO FINANCIAL MANAGER NAVAL AIR ENGINEERING CENTER REGARDING PAY FOR EMPLOYEES WHO WORKED DIFFERENT SHIFTS ON MARCH 31, 1969, DAY OF MOURNING FOR THE LATE PRESIDENT EISENHOWER. THE DAY OF MOURNING, MARCH 31, 1969, PRESCRIBED IN EXECUTIVE ORDER NO. 11462 IS IN ALL MATERIAL RESPECTS THE SAME AS UNDER EXECUTIVE ORDER NO. 11128 FOR THE LATE PRESIDENT KENNEDY AND THEREFORE SUCH DAY IS CONSIDERED A NONWORKDAY BUT NOT A HOLIDAY. IF EMPLOYER ON UNPREDICTABLE FLEET OPERATIONS ARE NOT SUBJECT TO ADVANCE NOTICE REQUIREMENT AND HAD THEIR SHIFTS CHANGED ONLY STRAIGHT TIME WOULD BE PAYABLE ON A NEW SHIFT WHICH DID NOT EMBRACE MORE THAN 8 HOURS ON ANY DAY OR 40 HOURS IN ANY WEEK.

TO MR. C. J. SEARL:

WE REFER TO YOUR LETTER OF JULY 16, 1969, YOUR REFERENCE AM-2:CJS:RG 7400, REQUESTING OUR DECISION CONCERNING THE PROPRIETY OF THE ACTION TAKEN WITH RESPECT TO THE FOLLOWING CATEGORIES OF EMPLOYEES WHO WORKED ON MONDAY, MARCH 31, 1969, THE DAY DECLARED BY EXECUTIVE ORDER NO. 11462 TO BE A NATIONAL DAY OF MOURNING FOR THE LATE PRESIDENT, DWIGHT DAVID EISENHOWER:

"A. EMPLOYEE CATEGORY NO. 1 PAYROLL ACTION

REGULAR WORKSHIFT-8:00 A.M. TO 4:30 P.M. NO ADDITIONAL COMPENSATION

HOURS WORKED - 8:00 A.M. TO 4:30 P.M. GRANTED. REGULAR PAY

GRANTED FOR 8 HRS.

WORKED.

"B. EMPLOYEE CATEGORY NO. 2

REGULAR WORKSHIFT-8:00 A.M. TO 4:30 P.M. ADDITIONAL COMPENSATION

HOURS WORKED - 8:00 A.M. TO 7:30 P.M. PAID FOR 3 HRS. OVERTIME.

REGULAR PAY GRANTED FOR

8 HRS. WORKED ON REGULAR

SHIFT.

"C. EMPLOYEE CATEGORY NO. 3

REGULAR WORKSHIFT-8:00 A.M. TO 4:30 P.M. ADDITIONAL COMPENSATION

HOURS WORKED - 3:30 P.M. TO 7:30 P.M. GRANTED FOR 3 HRS.

OVERTIME. REGULAR PAY

GRANTED FOR 1 HR. WORKED

DURING REGULAR SHIFT

AND 7 HRS. REGULAR PAY

GRANTED FOR ABSENCE ON

REGULAR SHIFT CHARGED

TO ADMINISTRATIVE LEAVE. B-153107

"D. EMPLOYEE CATEGORY NO. 4 PAYROLL ACTION

REGULAR WORKSHIFT-8:00 A.M. TO 4:30 P.M. CONSIDERED INVALID SHIFT

HOURS WORKED - 6:00 P.M. TO 9:00 P.M. CHANGE. ADDITIONAL

COMPENSATION PAID AS 3

HRS. OVERTIME. REGULAR

PAY GRANTED FOR 8 HRS.

ABSENCE ON REGULAR SHIFT

AND CHARGED TO

ADMINISTRATIVE LEAVE.

"E. EMPLOYEE CATEGORY NO. 5

REGULAR WORKSHIFT-8:00 A.M. TO 4:30 P.M. CONSIDERED INVALID SHIFT

HOURS WORKED - 12:00 P.M. TO 8:15 A.M. CHANGE. ADDITIONAL

COMPENSATION PAID FOR

8 HRS. WORKED AS OVERTIME.

REGULAR PAY GRANTED FOR

8 HRS. ABSENCE ON REGULAR

SHIFT AND CHARGED TO

ADMINISTRATIVE LEAVE.'

YOUR LETTER SAYS THAT SECNAV MSG 021940Z APR 1969, PRESCRIBED THE FOLLOWING PAY AND LEAVE POLICIES TO BE FOLLOWED WITH RESPECT TO MARCH 31, 1969:

"A. 31 MARCH 1969 WOULD NOT BE REGARDED AS A HOLIDAY FOR PAY AND LEAVE PURPOSES. EMPLOYEES WORKING ON THAT DAY WOULD BE COMPENSATED AT REGULAR OR OVERTIME RATES AS APPROPRIATE.

"B. EMPLOYEES WHOSE BASIC WORK WEEK INCLUDED 31 MARCH AND WHO WERE NOT REQUIRED TO REPORT FOR DUTY, INCLUDING THOSE WHO WERE ON SCHEDULED SICK OR ANNUAL LEAVE, WOULD BE GIVEN A REGULAR DAY'S COMPENSATION WITHOUT CHARGE TO SICK OR ANNUAL LEAVE.

"C. EMPLOYEES EXCUSED FROM WORK ON 31 MARCH WOULD BE REGARDED AS HAVING WORKED FOR PURPOSES OF DETERMINING ELIGIBILITY FOR OVERTIME WHICH MAY BE ORDERED OUTSIDE THE REGULARLY SCHEDULED HOURS OF THE DAY OR OUTSIDE THE BASIC WORKWEEK.'

YOU ALSO POINT OUT THAT CERTAIN EMPLOYEES WERE ORDERED TO WORK DIFFERENT SHIFTS ON MARCH 31, 1969, INCIDENT TO PERFORMING FUNCTIONS DIRECTLY CONCERNED WITH FLEET OPERATIONS. SUCH CHANGES IN WORK SHIFTS ON MARCH 31 WERE CONSIDERED TO BE INVALID SINCE THE ADVANCE NOTICES TO EMPLOYEES SUBJECT TO SUCH SHIFT CHANGES WERE NOT RECORDED AS REQUIRED BY NCPI 610 AND LOCAL DIRECTIVES.

THE PAY AND LEAVE POLICIES APPLICABLE ON MARCH 31, 1969, AS SET FORTH IN THE SECNAV MESSAGE QUOTED ABOVE, ARE CONSIDERED TO BE CORRECT. EXECUTIVE ORDER NO. 11462, MARCH 28, 1969, IS THE SAME IN ALL MATERIAL RESPECTS AS EXECUTIVE ORDER NO. 11128, NOVEMBER 23, 1963, PRESCRIBING THE PAY AND LEAVE PRACTICES TO BE FOLLOWED ON MONDAY, NOVEMBER 25, 1963, THE DAY PROCLAIMED AS A NATIONAL DAY OF MOURNING FOR THE LATE PRESIDENT, JOHN FITZGERALD KENNEDY. THAT ORDER (E.O. 11128) WAS THE SUBJECT OF OUR DECISION OF JANUARY 2, 1964 (B-153107, 43 COMP. GEN 501), IN WHICH WE CONCLUDED THAT MONDAY, NOVEMBER 25 WAS, UNDER THE TERMS OF THE EXECUTIVE ORDER, A NONWORKDAY BUT NOT A HOLIDAY. FOR YOUR FURTHER INFORMATION AND CONVENIENCE A COPY OF THAT DECISION IS ENCLOSED.

WE CONCUR WITH THE ACTION TAKEN IN THE SPECIFIC EMPLOYEE CATAGORIES SET FORTH IN THE ENCLOSURE TO YOUR LETTER, EXCEPT WITH RESPECT TO THE OVERTIME PAYABLE BECAUSE OF PURPORTED INVALID SHIFT CHANGES. WITH RESPECT TO SUCH OVERTIME THERE HAS NOT BEEN FURNISHED SUFFICIENT INFORMATION EITHER TO SUPPORT OR DENY IT. THE APPLICABLE REGULATIONS RELATING TO ADVANCE NOTICE OF SHIFT CHANGES WHICH WERE IN EFFECT ON MARCH 31, 1969, ARE FOUND IN APPENDIX A OF CIVILIAN MANPOWER MANAGEMENT INSTRUCTIONS, CHANGE 12, NOVEMBER 25, 1968. SEE SPECIFICALLY SECTIONS 610.S1-A-3A AND C (2). THOSE INSTRUCTIONS PROVIDE THAT SOME OPERATIONS SUCH AS DOCKING, UNDOCKING, LOADING AND UNLOADING ARE OF A NATURE WHICH REQUIRE THAT SHIFT HOURS BE ADAPTED TO UNPREDICTABLE OCCURRENCES SUCH AS SHIP ARRIVALS AND DEPARTURES AND, IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN SUCH REGULATIONS, SHIFT HOURS MAY BE CHANGED WITHOUT REGARD TO ADVANCE NOTICE REQUIREMENTS.

THUS, ON THE FACTS PRESENTED, IF THE UNPREDICTABLE FLEET OPERATIONS TO WHICH YOU REFER ARE OF A TYPE NOT SUBJECT TO THE ADVANCE NOTICE REQUIREMENTS AND, IN FACT, NECESSITATED THE CHANGES IN THE SHIFT HOURS OF THE EMPLOYEES DESCRIBED IN CATAGORIES 4 AND 5 ABOVE, AND IF THE PROCEDURES SET FORTH IN 610.S1-A-3C (2) WERE FOLLOWED, ONLY STRAIGHT TIME WOULD BE PAYABLE FOR WORK ON THE NEW B-153107 SHIFT THAT DID NOT EMBRACE MORE THAN 8 HOURS ON ANY DAY OR 40 HOURS IN ANY WEEK. IN THAT REGARD, WE POINT OUT THAT THERE WOULD BE FOR CONSIDERATION THE PROPRIETY OF ACTION TO WAIVE ANY OVERPAYMENTS WHICH MAY HAVE OCCURRED. SEE 5 U.S.C. 5584.