B-168048, AUG. 19, 1970

B-168048, AUG. 19, 1970

COMPENSATION -- OVERTIME SUSTAINING DECISION OF FEBRUARY 16, 1970, DISALLOWING CLAIM FOR PAYMENT OF ADDITIONAL COMPENSATION FOR OVERTIME AS A BORDER PATROL INSPECTOR SINCE WORK WAS NOT REGULARLY SCHEDULED OVERTIME.

TO MR. RUSSELL E. BRUCE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1970, REQUESTING RECONSIDERATION OF OUR DECISION OF FEBRUARY 16, 1970, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR PAYMENT OF ADDITIONAL COMPENSATION FOR OVERTIME AS A BORDER PATROL INSPECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE.

DURING THE PERIOD AUGUST 30 TO SEPTEMBER 12, 1964, YOU WERE DETAILED TO MISSISSIPPI AND ALABAMA FOR THE PURPOSE OF ASSISTING U. S. MARSHALS. DURING THIS PERIOD YOU PERFORMED 65 HOURS OF OVERTIME WORK FOR WHICH YOU CLAIMED PAYMENT IN ADDITION TO THE 15 PERCENT PREMIUM PAY WHICH YOU RECEIVED UNDER THE PROVISIONS OF 5 U.S.C. 926(2) (1964 ED.). YOUR CLAIM WAS BASED ON THE BELIEF THAT THE OVERTIME WAS REGULARLY SCHEDULED INSTEAD OF UNCONTROLLABLE OVERTIME AND ALLOWABLE UNDER OUR DECISION 48 COMP. GEN. 334 (B-164689, NOVEMBER 20, 1968). THE DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED BECAUSE THE WORK PERFORMED BY YOU WAS NOT REGARDED AS "REGULARLY SCHEDULED OVERTIME" WHICH WAS DEFINED IN DECISION 48 COMP. GEN. 334 AS OVERTIME WORK AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. YOU STATE THAT THE U. S. MARSHAL IN CHARGE SCHEDULED OVERTIME WORK TO RECUR FOR 14 SUCCESSIVE DAYS AND, THEREFORE, THE WORK PERFORMED BY YOU WAS "REGULARLY SCHEDULED OVERTIME."

THE RECORD INDICATES THAT NO DEFINITE SCHEDULE OF OVERTIME WORK WAS PREPARED AT THE BEGINNING OF YOUR DETAIL. ON THE CONTRARY, SCHEDULES WERE MADE ON A DAY TO DAY--AND AT TIMES AN HOUR TO HOUR--BASIS. MOREOVER, THE TIME RECORD INDICATES THAT THE AMOUNT OF OVERTIME WORK VARIED FROM DAY TO DAY WITHOUT ANY DISCERNIBLE PATTERN AND THAT NO OVERTIME WORK WAS PERFORMED ON TWO DAYS. THIS IS IN CONTRAST TO THE SITUATION IN DECISION 48 COMP. GEN. 334 WHEREIN THE EMPLOYEES WERE ADVISED AT THE BEGINNING OF THEIR DETAILS THAT THEY WERE TO WORK 12 HOUR SHIFTS. SINCE YOUR OVERTIME WAS NEITHER DEFINITELY REGULARLY SCHEDULED NOR WORKED, WE CANNOT CONSIDER IT "REGULARLY SCHEDULED OVERTIME" AS DEFINED IN DECISION 48 COMP. GEN. 334.

SECTION 926(2) (NOW 5545(C)(2)) OF TITLE 5 PROVIDES THAT AN AGENCY HEAD MAY AUTHORIZE ANNUAL PREMIUM PAY WHEN AN EMPLOYEE OCCUPIES A POSITION WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED OVERTIME DUTY AND DUTY AT NIGHT AND ON HOLIDAYS WITH THE EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY. IN THE INSTANT CASE THE OVERTIME WORK WAS PERFORMED UNDER DIRECT SUPERVISION INSTEAD OF PURSUANT TO A DETERMINATION BY YOU THAT THE ADDITIONAL WORK WAS REQUIRED. HOWEVER, THE FACT THAT THE STATUTE STATES THE EMPLOYEE SHALL GENERALLY BE RESPONSIBLE FOR RECOGNIZING THE NECESSITY FOR OVERTIME WORK DOES NOT CONVERT IRREGULAR OVERTIME WORK TO "REGULARLY SCHEDULED OVERTIME" WHEN CIRCUMSTANCES REQUIRE DIRECTED OVERTIME FOR SHORT PERIODS. THIS IS SO SINCE THE TERM "GENERALLY" IS NOT TANTAMOUNT TO "IN ALL INSTANCES" AND, THEREFORE, PERMITS OCCASIONAL SHORT PERIODS OF DIRECTED OVERTIME.

IN VIEW OF THE ABOVE OUR PRIOR DECISION MUST BE AND IS SUSTAINED.