B-180397, SEP 24, 1974

B-180397: Sep 24, 1974

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NATIONAL GUARD FIREFIGHTERS WHO ARE ASSIGNED TO AIR NATIONAL GUARD UNITS AS TECHNICIANS AND HAVE TO BE A MEMBER OF A NATIONAL GUARD UNIT WOULD NOT BE ENTITLED TO ANNUAL PREMIUM PAY UNDER 32 U.S.C. 709(G)(2). 2. WILL BE DETERMINED BY THE CIVIL SERVICE COMMISSION (CSC) WHICH IS AUTHORIZED TO ADMINISTER THE PROVISIONS OF THE ACT AS IT APPLIES TO FEDERAL EMPLOYEES. THE FLSA IS NOT APPLICABLE TO THIS CATEGORY OF FEDERAL EMPLOYEES UNTIL JANUARY 1. ANNUAL PREMIUM PAY - NATIONAL GUARD TECHNICIANS: THIS IS A MATTER CONCERNING THE PAYMENT OF ANNUAL PREMIUM PAY TO AIR NATIONAL GUARD FIREFIGHTERS EMPLOYED AT BUCKLEY AIR FORCE BASE. IT WAS DETERMINED BY THE NATIONAL GUARD BUREAU THAT THE WORDING IN THAT STATUTE WAS BROAD ENOUGH TO PERMIT THE PAYMENT OF 12 PERCENT ANNUAL PREMIUM PAY TO THE FIREFIGHTERS.

B-180397, SEP 24, 1974

1. NATIONAL GUARD FIREFIGHTERS WHO ARE ASSIGNED TO AIR NATIONAL GUARD UNITS AS TECHNICIANS AND HAVE TO BE A MEMBER OF A NATIONAL GUARD UNIT WOULD NOT BE ENTITLED TO ANNUAL PREMIUM PAY UNDER 32 U.S.C. 709(G)(2). 2. THE EXEMPT OR NONEXEMPT STATUS OF FIREFIGHTERS TO THE OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS AMENDMENTS (FLSA) OF 1974, PUBLIC LAW 92-259, WILL BE DETERMINED BY THE CIVIL SERVICE COMMISSION (CSC) WHICH IS AUTHORIZED TO ADMINISTER THE PROVISIONS OF THE ACT AS IT APPLIES TO FEDERAL EMPLOYEES, BUT IN ANY CASE, THE FLSA IS NOT APPLICABLE TO THIS CATEGORY OF FEDERAL EMPLOYEES UNTIL JANUARY 1, 1975.

ANNUAL PREMIUM PAY - NATIONAL GUARD TECHNICIANS:

THIS IS A MATTER CONCERNING THE PAYMENT OF ANNUAL PREMIUM PAY TO AIR NATIONAL GUARD FIREFIGHTERS EMPLOYED AT BUCKLEY AIR FORCE BASE, DENVER, COLORADO.

THE INFORMATION OF RECORD SHOWS THAT AFTER THE ENACTMENT OF THE NATIONAL GUARD TECHNICIAN ACT OF 1968, PUBLIC LAW 90-486, EFFECTIVE JANUARY 1, 1969, WHICH AMENDED 32 U.S.C. 709, IT WAS DETERMINED BY THE NATIONAL GUARD BUREAU THAT THE WORDING IN THAT STATUTE WAS BROAD ENOUGH TO PERMIT THE PAYMENT OF 12 PERCENT ANNUAL PREMIUM PAY TO THE FIREFIGHTERS. ANNUAL PREMIUM PAY FOR TECHNICIANS WORKING IN AIR DEFENSE SITES IS LIMITED TO A MAXIMUM OF 12 PERCENT. IT WAS FELT THAT THE REQUEST FOR 12 PERCENT ANNUAL PREMIUM PAY FOR FIREFIGHTERS WAS PRUDENT AND IN KEEPING WITH THE INTENT OF THE LAW THAT ESTABLISHED THE TECHNICIAN PROGRAM. IN 1972 AFTER RECONSIDERING THE MATTER THE NATIONAL GUARD BUREAU DETERMINED THAT 32 U.S.C. 709(G) WAS APPLICABLE ONLY TO PERSONNEL ASSIGNED TO AIR DEFENSE SITES. BY NATIONAL GUARD BUREAU LETTER OF AUGUST 18, 1972, THE ANNUAL PREMIUM PAY OF FIREFIGHTERS ASSIGNED TO AIR NATIONAL GUARD UNITS WAS RAISED TO 25 PERCENT UNDER 5 U.S.C. 5545.

IT HAS BEEN INFORMALLY ASCERTAINED FROM THE NATIONAL GUARD BUREAU THAT FIREFIGHTERS ASSIGNED TO AIR NATIONAL GUARD UNITS ARE TECHNICIANS AND HAVE TO BE A MEMBER OF THE NATIONAL GUARD TO HOLD THEIR JOBS. SUBSECTION 709(G) OF TITLE 32, U.S.C. AS AMENDED BY PUBLIC LAW 90-486, PROVIDES:

"(G)(1) NOTWITHSTANDING SECTIONS 5544(A) AND 6102 OF TITLE 5, U.S.C. OR ANY OTHER PROVISION OF LAW, THE SECRETARY CONCERNED MAY, IN THE CASE OF TECHNICIANS ASSIGNED TO PERFORM OPERATIONAL DUTIES AT AIR DEFENSE SITES-

"(A) PRESCRIBE THE HOURS OF DUTIES;

"(B) FIX THE RATES OF BASIC COMPENSATION; AND

"(C) FIX THE RATES OF ADDITIONAL COMPENSATION;

TO REFLECT UNUSUAL TOURS OF DUTY, IRREGULAR ADDITIONAL DUTY, AND WORK ON DAYS THAT ARE ORDINARILY NONWORKDAYS. ADDITIONAL COMPENSATION UNDER THIS SUBSECTION MAY BE FIXED ON AN ANNUAL BASIS AND IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT IN EXCESS OF 12 PERCENT, OF SUCH PART OF THE RATE OF BASIC PAY FOR THE POSITION AS DOES NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-10 OF THE GENERAL SCHEDULE UNDER SECTION 5332 OF TITLE 5, UNITED STATES CODE.

"(2) NOTWITHSTANDING SECTIONS 5544(A) AND 6102 OF TITLE 5, U.S.C. OR ANY OTHER PROVISION OF LAW, THE SECRETARY CONCERNED MAY, FOR TECHNICIANS OTHER THAN THOSE DESCRIBED IN CLAUSE (1) OF THIS SUBSECTION, PRESCRIBE THE HOURS OF DUTY FOR TECHNICIANS. NOTWITHSTANDING SECTIONS 5542 AND 5543 OF TITLE 5, U.S.C. OR ANY OTHER PROVISIONS OF LAW, SUCH TECHNICIANS SHALL BE GRANTED AN AMOUNT OF COMPENSATORY TIME OFF FROM THEIR SCHEDULED TOUR OF DUTY EQUAL TO THE AMOUNT OF ANY TIME SPENT BY THEM IN IRREGULAR OR OVERTIME WORK, AND SHALL NOT BE ENTITLED TO COMPENSATION FOR SUCH WORK."

SUBSECTION (G)(1) QUOTED ABOVE WOULD NOT BE APPLICABLE TO FIREFIGHTERS SINCE WE HAVE BEEN INFORMALLY ADVISED THAT NONE ARE ASSIGNED TO AIR DEFENSE SITES.

SENATE REPORT NO. 1446, 90TH CONGRESS, 2D SESSION, PART OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-486, STATES AT PAGE 3, "WITH REGARD TO SPECIAL PAYS, OVERTIME, DIFFERENTIAL AND PREMIUM PAY, NONE IS AUTHORIZED UNDER THE PRESENT SYSTEM, ONLY COMPENSATORY TIME OFF." WITH RESPECT TO THE NEW LEGISLATION WHICH SUPERSEDED THE OLD, THE REPORT STATES AT PAGE 16:

"AUTHORITY OF THE SECRETARY TO PRESCRIBE THE HOURS OF WORK WITH AUTHORITY FOR COMPENSATORY TIME OFF

"THE BILL PROVIDES THAT THE SECRETARY CONCERNED MAY PRESCRIBE THE HOURS OF DUTY FOR ALL TECHNICIANS (OTHER THAN THOSE EMPLOYED AT AIR DEFENSE SITES WHERE SEPARATE AUTHORITY WILL APPLY) AND DIRECTS THE SECRETARY TO GRANT COMPENSATORY TIME OFF TO A TECHNICIAN FROM A REGULARLY SCHEDULED TOUR OF DUTY IN AN AMOUNT EQUAL TO THE AMOUNT OF TIME SPENT IN IRREGULAR OR OVERTIME WORK IN LIEU OF BEING PAID FOR THAT WORK. THIS AUTHORITY WILL CONTINUE THE EXISTING PRACTICE REGARDING HOURS OF WORK AND COMPENSATORY TIME OFF. IT IS THE FIRM VIEW OF THE COMMITTEE THAT THE IRREGULAR HOURS OF WORK TO WHICH TECHNICIANS ARE SUBJECTED ON FREQUENT OCCASIONS MAKE IT IMPRACTICAL, BOTH FROM THE STANDPOINT OF THE GOVERNMENT AND THE INDIVIDUAL, TO BE LIMITED TO THE NORMAL PROVISIONS REGARDING A STRAIGHT 40 -HOUR WEEK WITH OVERTIME OR DIFFERENTIAL PAY FOR ADDITIONAL HOURS OF WORK. THE FREQUENT IRREGULAR HOURS ARE INHERENT IN THE TECHNICIAN JOB AND POSITION."

THE APPLICABLE PARTS OF HOUSE REPORT NO. 1823, 90TH CONGRESS, 2D SESSION, AT PAGES 3 AND 13, ARE TO THE SAME EFFECT.

WE NOTE THAT THE STATUTORY PROVISION REGARDING COMPENSATORY TIME OFF FOR IRREGULAR OR OVERTIME WORK SPECIFICALLY STATES THAT NO COMPENSATION IS ALLOWABLE FOR SUCH WORK. ALSO, THAT PORTION OF THE LEGISLATIVE HISTORY QUOTED ABOVE DEALING WITH COMPENSATORY TIME OFF INDICATES THAT SUCH TIME OFF IS TO BE IN LIEU OF OVERTIME OR DIFFERENTIAL PAY FOR ADDITIONAL HOURS OF WORK.

IN VIEW OF THE STATUTORY PROVISION AND THE LEGISLATIVE HISTORY PROHIBITING OVERTIME OR DIFFERENTIAL PAY FOR ADDITIONAL HOURS OF WORK, WE REQUESTED A REPORT FROM THE CHIEF, NATIONAL GUARD BUREAU. THE CHIEF, NATIONAL GUARD BUREAU, ADVISED US THAT THEIR AUTHORITY TO PAY PREMIUM PAY ON AN ANNUAL BASIS TO FIREFIGHTER TECHNICIANS IS FOUND IN SECTION 5545, TITLE 5, U.S.C. AND CIVIL SERVICE COMMISSION REGULATION 550.151. SECTION 5545 ALLOWS AN AGENCY TO PAY PREMIUM PAY ON AN ANNUAL BASIS TO AN EMPLOYEE HAVING A WORK SCHEDULE WHICH REQUIRES HIM TO REMAIN AT, OR WITHIN, THE CONFINES OF HIS STATION DURING LONGER-THAN ORDINARY PERIODS, A SUBSTANTIAL PART OF WHICH CONSISTS OF HIS REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK.

IN INTERPRETING 32 U.S.C. 709(G) WE HELD IN 50 COMP. GEN. 847 (1971) AS FOLLOWS:

"AIR NATIONAL GUARD TECHNICIANS, WHETHER THEY ARE WAGE OR NONGRADED EMPLOYEES OR GENERAL SCHEDULE EMPLOYEES, WHO FOR A 12-HOUR WORKDAY RECEIVE 4 HOURS COMPENSATORY TIME FOR WORK IN EXCESS OF 8 HOURS A DAY, OR RECEIVE COMPENSATORY TIME FOR AN 8-HOUR SUNDAY TOUR OF DUTY, ARE NOT ENTITLED TO ENVIRONMENTAL DIFFERENTIAL PAY, NIGHT SHIFT DIFFERENTIAL PAY, OR PREMIUM PAY, AS 32 U.S.C. 709(G) IN AUTHORIZING THE SECRETARY CONCERNED TO PRESCRIBE THE HOURS OF DUTY FOR THE TECHNICIANS AND TO FIX THEIR BASIC COMPENSATION OR ADDITIONAL COMPENSATION, PROVIDES FOR THE GRANTING OF COMPENSATORY TIME IN AN AMOUNT EQUAL TO THE TIME SPENT IN IRREGULAR OR OVERTIME WORK WITH NO COMPENSATION FOR THE COMPENSATORY TIME, SINCE THE COMPENSATORY TIME IS INTENDED TO BE IN LIEU OF OVERTIME OR DIFFERENTIAL PAY FOR ADDITIONAL HOURS OF WORK."

THE SAME CASE WAS DECIDED IN FAVOR OF THE GOVERNMENT IN THE COURT OF CLAIMS IN THE CASE OF GUARRIELLO V. UNITED STATES, 201 CT. CL. 129 (1973), WHERE THE PLAINTIFF CLAIMED ENTITLEMENT TO ENVIRONMENTAL DIFFERENTIAL PAY OVER AND ABOVE A 12 PERCENT ANNUAL PREMIUM ALREADY BEING RECEIVED. INTERPRETING 32 U.S.C. 709(G)(1) WHICH CONTAINS SIMILAR LANGUAGE AS IN 32 U.S.C. 709(G)(2) THE COURT STATED THAT THE CLAIM LANGUAGE "NOTWITHSTANDING *** ANY OTHER PROVISION OF LAW" LEAVES NO DOUBT THAT THIS STATUTE IS INTENDED TO BE THE CONTROLLING FACTOR REGARDING PAY SCHEDULES OF NATIONAL GUARD TECHNICIANS. THE COURT WENT ON TO SAY THAT THE PLAINTIFF MAY RECEIVE UP TO A 12 PERCENT ANNUAL PREMIUM BUT NOT IN EXCESS OF 12 PERCENT. SECTION 709(G)(1) IS THE CONTROLLING STATUTE; IT TOTALLY GOVERNS PLAINTIFF'S PAY, THERE IS NO POSSIBLE WAY HE CAN RECEIVE, UNDER THE STATUTE, MORE THAN THE 12 PERCENT PREMIUM PAY HE NOW RECEIVES. IT FOLLOWS THAT SECTION 709(G)(2) IS THE CONTROLLING STATUTE WHICH GOVERNS THE PAY OF NATIONAL GUARD TECHNICIANS, OTHER THAN THOSE ASSIGNED TO PERFORM OPERATIONAL DUTIES AT AIR DEFENSE SITES, AND THERE IS NO POSSIBLE WAY THAT SUCH TECHNICIANS CAN RECEIVE, UNDER THE STATUTE, ANNUAL PREMIUM PAY.

SINCE THERE IS NO AUTHORITY TO PAY ANNUAL PREMIUM PAY TO NATIONAL GUARD FIREFIGHTERS WHO ARE TECHNICIANS, SUCH PRACTICE SHOULD BE DISCONTINUED. ANY OVERPAYMENT OF COMPENSATION WOULD BE SUBJECT TO WAIVER UNDER 5 U.S.C. 5584 EITHER BY THE COMPTROLLER GENERAL OR THE SECRETARY OF THE AIR FORCE AS THE CASE MAY BE. SEE 4 CFR 91.1 TO 91.3.

AN OFFICIAL OF THE NATIONAL GUARD BUREAU HAS EXPRESSED THE OPINION THAT FIREFIGHTERS (TECHNICIANS) ASSIGNED TO AIR NATIONAL GUARD UNITS ARE SUBJECT TO THE FAIR LABOR STANDARDS AMENDMENTS (FLSA) OF 1974, PUBLIC LAW 93-259, 52 STAT. 1060, AND UNDER THAT STATUTE WOULD BE ENTITLED TO OVERTIME COMPENSATION IN LIEU OF COMPENSATORY TIME. THE MATTER OF OVERTIME COMPENSATION FOR FIREFIGHTERS UNDER FLSA WOULD NOT BE FOR CONSIDERATION AT THIS TIME SINCE SUCH PAYMENTS WOULD BE EFFECTIVE NO SOONER THAN JANUARY 1, 1975. HOWEVER, UNDER SECTION 4(F) OF THE FLSA, AS ADDED BY SECTION 6(B) OF PUBLIC LAW 93-259, THE CIVIL SERVICE COMMISSION IS AUTHORIZED TO ADMINISTER THE PROVISIONS OF THE FLSA WITH RESPECT TO ANY INDIVIDUAL EMPLOYED BY THE UNITED STATES OTHER THAN CERTAIN INDIVIDUALS NOT HERE APPLICABLE.

WE UNDERSTAND THAT THE CIVIL SERVICE COMMISSION IS IN THE PROCESS OF DRAFTING REGULATIONS WHICH DEAL WITH EXEMPT OR NONEXEMPT STATUS OF ALL FEDERAL EMPLOYEES, INCLUDING FIREFIGHTERS.