B-181237, APR 15, 1975

B-181237, APR 15, 1975

1. ON BASIS OF RECORD, GAO CANNOT OBJECT TO DEPARTMENT OF STATE'S DEFINITION OF DIPLOMATIC COURIERS' HOURS OF WORK AS TIME SPENT WITH DIPLOMATIC POUCH IN HAND PLUS TIME SPENT PERFORMING ASSIGNED ADMINISTRATIVE DUTIES. THEREFORE, COURIERS' TIME SPENT IN TRAVEL STATUS NOT INVOLVING PERFORMANCE OF WORK, I.E., NOT PROTECTING OR TRANSPORTING DIPLOMATIC POUCH OR PERFORMING ASSIGNED ADMINISTRATIVE DUTIES, IS NOT "HOURS OF WORK" FOR PURPOSES OF COMPUTING OVERTIME PAY. 2. DEPARTMENT OF STATE'S CREATION OF 5-DAY 40-HOUR "WORKWEEK," WHICH IN NO WAY REFLECTED ACTUAL HOURS OF WORK OF DIPLOMATIC COURIERS, WAS IMPROPER AND INCONSISTENT WITH PROVISIONS OF TITLE 5, U.S.C. AND IMPLEMENTING REGULATIONS AND, THEREFORE, CANNOT FORM BASIS FOR TREATING UNWORKED HOURS DURING THAT WEEK AS "HOURS OF WORK" FOR PURPOSES OF COMPUTING OVERTIME PAY, NOR CAN TIME SPENT IN TRAVEL STATUS NOT PERFORMING WORK DURING THIS ARBITRARILY DESIGNATED "WORKWEEK" BE TREATED AS "HOURS OF WORK." 3. DIPLOMATIC COURIERS' TRAVEL IS NOT TRAVEL UNDER ARDUOUS CONDITIONS SINCE THERE HAS BEEN NO SHOWING THAT TRAVEL INVOLVED SEVERE WEATHER CONDITIONS, ETC. 4. DIPLOMATIC COURIER, WHOSE RATE OF PAY WAS NOT IN EXCESS OF HIGHEST GRADE OF GS-10, SHOULD HAVE RECEIVED PREMIUM COMPENSATION FOR OVERTIME WORK RATHER THAN EQUAL AMOUNT OF COMPENSATORY TIME OFF, WHICH HE WAS REQUIRED TO USE BY DEPARTMENT OF STATE, INASMUCH AS EMPLOYEE'S ACQUIESCENCE WITH AGENCY'S LONG-STANDING POLICY OF REQUIRING COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY CANNOT BE CONSTRUED AS REQUEST FOR COMPENSATORY TIME OFF. THEREFORE, HE IS ENTITLED TO DIFFERENCE BETWEEN AMOUNT OF OVERTIME PAY DUE HIM AND VALUE OF COMPENSATORY TIME OFF HE USED. 5. EVEN THOUGH DIPLOMATIC COURIER DID NOT WORK 40 HOURS A WEEK FOR MANY WORKWEEKS, HE HAS NOT BEEN GIVEN EXCESS PAY, WHICH WOULD BE REQUIRED TO BE SET OFF FROM SUMS OTHERWISE DUE HIM, SINCE DIPLOMATIC COURIERS, AS "FULL TIME EMPLOYEES," WERE GUARANTEED 40 HOURS OF WORK EACH WEEK, EVEN IF THEY WERE NOT ASSIGNED SUFFICIENT WORK TO MAKE UP 40 HOURS. 6. DIPLOMATIC COURIER WITH FIRST 40 HOUR WORKWEEK, WHICH COULD NOT ENTIRELY BE CONTROLLED ADMINISTRATIVELY, IS ENTITLED TO NIGHT DIFFERENTIAL, SINCE HE WAS CALLED UPON TO PERFORM NIGHT WORK VIRTUALLY EVERY WEEK ALBEIT NOT IN ANY PREDICTABLE MANNER AND SUCH WORK WAS SO HABITUAL AND RECURRENT THAT IT COULD BE SAID TO BE "REGULARLY SCHEDULED WORK" AT NIGHT.

NATHANIEL R. RAGSDALE - DIPLOMATIC COURIER - OVERTIME COMPENSATION - NIGHT DIFFERENTIAL: STATE (STATE), HAS REQUESTED RECONSIDERATION OF THE DISALLOWANCE OF HIS CLAIM FOR PREMIUM COMPENSATION FOR OVERTIME WORK AND NIGHT WORK FOR THE PERIOD JULY 24, 1966, TO MARCH 17, 1967, BY OUR TRANSPORTATION AND CLAIMS DIVISION ON DECEMBER 18, 1967, IN THE LIGHT OF CERTAIN CHANGES IN STATE'S POLICIES AND MORE RECENT COMPTROLLER GENERAL DECISIONS.

THROUGHOUT THE PERIOD IN QUESTION, MR. RAGSDALE WAS STATIONED AT FRANKFURT, GERMANY, AND CONVEYED CLASSIFIED DISPATCHES TO AND FROM EUROPEAN, NEAR EASTERN AND NORTH AFRICAN POSTS. DURING THIS PERIOD, MR. RAGSDALE WORKED AN ERRATIC WORKWEEK, WHICH COULD NOT ENTIRELY BE CONTROLLED ADMINISTRATIVELY SINCE IT WAS NECESSARILY DEPENDENT ON THE AVAILABILITY OF TRANSPORTATION TO AND FROM FOREIGN SERVICE POSTS AND THE NEEDS OF THOSE POSTS.

PRIOR TO JANUARY 1, 1967, STATE'S REPORTING OF THE TIME AND ATTENDANCE BY DIPLOMATIC COURIERS DID NOT REFLECT THE HOURS THEY ACTUALLY WORKED. MANY TIMES COURIERS WORKED MORE THAN 40 HOURS A WEEK AND MANY MORE TIMES THEY WORKED LESS THAN 40 HOURS A WEEK, INASMUCH AS THEIR WORK HOURS WERE DEPENDENT UPON THE AVAILABILITY OF TRANSPORTATION TO AND FROM THE VARIOUS FOREIGN SERVICE POSTS AND THE NEEDS OF THE POSTS. HOWEVER, STATE ATTEMPTED TO ARRANGE THE COURIERS' SCHEDULES SO THAT WEEKS REQUIRING MORE THAN 40 HOURS OF WORK WERE OFFSET BY WEEKS IN WHICH FEWER THAN 40 HOURS WERE SCHEDULED. ALTHOUGH THE COURIERS' TIME AND ATTENDANCE RECORDS FOR THIS PERIOD INDICATED WORKWEEKS OF 40 HOURS FOR EACH WEEK, CONSISTING OF 5 8-HOUR DAYS, THESE RECORDS DID NOT REFLECT THE COURIERS' ACTUAL HOURS OF WORK. NO OVERTIME WAS PAID FOR THOSE HOURS WORKED IN EXCESS OF 40; THE STATE DEPARTMENT CONSIDERED THAT THE COURIERS HAD ASKED FOR (SINCE THEY HAD ALL ACQUIESCED) AND RECEIVED "COMPENSATORY TIME OFF" DURING THE WEEKS IN WHICH THEY WERE REQUIRED TO WORK LESS THAN 40 HOURS.

FOR THE PERIOD IN QUESTION (JULY 24, 1966, TO MARCH 17, 1967) THE APPLICABLE STATUTES GOVERNING THE PAYMENT OF OVERTIME ARE 5 U.S.C. SECS. 911-912B (SUPP. II, 1965-66), WHICH STATE IN PERTINENT PART:

"SEC. 911. PAYMENT OF OVERTIME; RATES.

"ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK OR, WITH THE EXCEPTION OF *** EMPLOYEES WHOSE BASIC COMPENSATION EXCEEDS THE MINIMUM RATE OF GRADE GS 10 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, FOR WHOM THE FIRST FORTY HOURS OF DUTY IN AN ADMINISTRATIVE WORKWORK IS THE BASIC WORKWEEK, IN EXCESS OF EIGHT HOURS IN A DAY PERFORMED BY OFFICERS AND EMPLOYEES TO WHOM THIS SUBCHAPTER APPLIES SHALL BE CONSIDERED TO BE OVERTIME WORK ***

"SEC. 912. COMPENSATORY TIME OFF FOR IRREGULAR OR OCCASIONAL OVERTIME WORK.

"(A) THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY, *** (1) MAY, AT THE REQUEST OF ANY OFFICER OR EMPLOYEE, GRANT SUCH OFFICER OR EMPLOYEE COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY IN LIEU OF PAYMENT FOR AN EQUAL AMOUNT OF TIME SPENT IN IRREGULAR OR OCCASIONAL OVERTIME WORK, AND (2) MAY, AT HIS OWN DISCRETION, PROVIDE THAT ANY OFFICER OR EMPLOYEE, WHOSE RATE OF BASIC COMPENSATION IS IN EXCESS OF THE MAXIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS-10 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE COMPENSATED FOR IRREGULAR OR OCCASIONAL OVERTIME WORK FOR WHICH COMPENSATION WOULD BE DUE UNDER THIS CHAPTER WITH AN EQUAL AMOUNT OF COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY IN LIEU OF SUCH COMPENSATION.

"SEC. 912B. TIME IN TRAVEL STATUS.

"FOR THE PURPOSES OF THIS CHAPTER, TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF ANY OFFICER OR EMPLOYEE SHALL BE CONSIDERED AS HOURS OF EMPLOYMENT ONLY WHEN (1) WITHIN THE DAYS AND HOURS OF SUCH OFFICER'S OR EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS, OR (2) WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS. ***"

PUBLIC LAW 89-554, SEPTEMBER 6, 1966, 80 STAT. 485-486, WHICH REORGANIZED AND RESTATED TITLE 5, INCORPORATED THE ABOVE-QUOTED SECTIONS INTO 5 U.S.C. SECS. 5542-5543 (SUPP. II, 1965-66) (THESE ARE THE CURRENT RELEVANT SECTIONS GOVERNING OVERTIME PAY), EXCEPT THOSE AMENDMENTS TO 5 U.S.C. SECS. 911-912B (1964 ED.) SUBSEQUENT TO JUNE 30, 1965. CERTAIN AMENDMENTS WERE MADE BY PUBLIC LAW 89-504, JULY 18, 1966, 80 STAT. 297, AND ARE REFLECTED IN THE SECTIONS QUOTED ABOVE.

DURING THE PERIOD IN QUESTION STATE DEFINED COURIER WORK HOURS AS TIME SPENT WITH POUCH IN HAND PLUS TIME SPENT PERFORMING ASSIGNED ADMINISTRATIVE DUTIES SUCH AS PREPARING TIME REPORTS. STATE SAYS THAT THIS DEFINITION OF COURIER WORK HOURS WAS CONCURRED WITH BY THE CIVIL SERVICE COMMISSION.

MR. RAGSDALE DISAGREES WITH THIS DEFINITION, STATING THAT IT IS INCONSISTENT WITH 5 U.S.C. SEC. 5542(B)(2)(A) AND (B) (SUPP. II, 1965 66) AND 5 C.F.R. SEC. 550.112 (1966). MR. RAGSDALE APPARENTLY BELIEVES THAT HE SHOULD HAVE BEEN PAID FOR THE DESIGNATED 5-DAY 40-HOUR WORKWEEK PLUS ALL TIME SPENT IN A TRAVEL STATUS, EVEN WHEN HE WAS NOT SAFEGUARDING A POUCH. IN THIS REGARD, MR. RAGSDALE HAS CONTENDED THAT HE WAS REQUIRED TO BE "ON DUTY" DURING THE DESIGNATED WORKWEEK, WHICH HE STATES WAS REGULARLY SCHEDULED UNDER 5 C.F.R. SEC. 550.103 (1966), ALTHOUGH HIS SCHEDULES WHILE ON OFFICIAL COURIER TRIPS WERE HIGHLY IRREGULAR.

AS INDICATED ABOVE, IT IS STATE'S POSITION THAT THE COURIERS WERE ONLY WORKING WHEN THEY HAD POUCH IN HAND OR WERE PERFORMING OTHER ADMINISTRATIVE FUNCTIONS AND THERE WAS NO REQUIREMENT OF COURIER ATTENDANCE DURING THE DESIGNATED WORKWEEK REFLECTED IN THE COURIERS' TIME AND ATTENDANCE RECORDS UNLESS ASSIGNED DUTIES WERE TO BE PERFORMED IN THAT PERIOD. MOREOVER, IT IS STATE'S POSITION THAT THE COURIERS' WORK HOURS DID NOT ENCOMPASS ALL TIME THAT COURIERS SPENT IN A TRAVEL STATUS SINCE THE TIME WHEN COURIERS WERE NOT SAFEGUARDING POUCHES OR PERFORMING OTHER ADMINISTRATIVE FUNCTIONS WAS ENTIRELY THEIR OWN AND THE COURIERS WERE NOT REQUIRED TO BE "ON DUTY" WHEN THEY WERE NOT PERFORMING THESE FUNCTIONS, EVEN DURING THE ARBITRARILY DESIGNATED WORKWEEK.

RECOGNIZING THE IMPROPRIETY OF ESTABLISHING AN ADMINISTRATIVE WORKWEEK WHICH DID NOT COINCIDE WITH THE COURIERS' ACTUAL HOURS OF WORK, STATE MODIFIED ITS PROCEDURES EFFECTIVE JANUARY 1, 1967, SO THAT THE COURIERS' WORKWEEK WAS MADE TO CONSIST OF THE FIRST 40 HOURS WORKED. IN ADDITION, COURIERS WERE PAID OVERTIME PAY FOR THOSE HOURS OF WORK IN EXCESS OF 40. THE DEFINITION OF COURIER WORK HOURS REMAINED THE SAME AS THAT OUTLINED ABOVE, HOWEVER, ALTHOUGH STATE HAS MADE CERTAIN MODIFICATIONS IN THIS DEFINITION SINCE THE PERIOD OF THIS CLAIM TO ALLOW SHORT PERIODS OF LAYOVER TIME WHILE IN A TRAVEL STATUS TO BE TREATED AS HOURS OF WORK UNDER CERTAIN CIRCUMSTANCES.

IN INSTANCES, SUCH AS THE PRESENT CASE, WHERE THERE IS A CONFLICT BETWEEN THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE AND THOSE STATED BY A CLAIMANT, IT HAS LONG BEEN THE ESTABLISHED RULE OF THIS OFFICE TO RELY ON THE REPORT OF THE FACTS SUBMITTED BY THE ADMINISTRATIVE OFFICE, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE REPORT. 16 COMP. GEN. 325 (1936); 38 ID. 527, 530 (1959); B-177639, MARCH 9, 1973. ON THE RECORD BEFORE US THERE IS NOT SUFFICIENT EVIDENCE TO QUESTION STATE'S STATEMENT THAT THE COURIERS WERE ONLY REQUIRED TO WORK WHEN IN POSSESSION OF A POUCH OR PERFORMING OTHER ADMINISTRATIVE FUNCTIONS.

IT IS CLEAR THAT COMPENSATION FOR OVERTIME MAY ONLY BE PAID FOR WORK ACTUALLY "PERFORMED BY OFFICERS AND EMPLOYEES" IN EXCESS OF 40 HOURS A WORKWEEK. SEE 5 APP. U.S.C. SEC. 911 (SUPP. II, 1965-66) (NOW 5 U.S.C. SEC. 5542 (1970)); 25 COMP. GEN. 344, 347 (1945); 46 COMP. GEN. 217 (1966). CONSEQUENTLY, THE EXISTENCE OF A DESIGNATED "WORKWEEK," WHICH IN NO WAY REFLECTED THE COURIERS' ACTUAL HOURS OF WORK, CANNOT FORM A BASIS FOR TREATING THE UNWORKED HOURS DURING THAT WEEK AS "HOURS OF WORK." INDEED, THE CREATION OF SUCH AN ARTIFICIAL "WORKWEEK" WAS ENTIRELY IMPROPER, AS HAS BEEN ACKNOWLEDGED BY STATE, AND INCONSISTENT WITH 5 U.S.C. SEC. 944 (1964) (SUPP II, 1965-66) (NOW 5 U.S.C. SEC. 6101) AND 5 C.F.R. SEC. 610.111 (1966).

MOREOVER, COMPENSATION COULD ONLY HAVE BEEN PAID TO AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS, IF THE TRAVEL INVOLVED THE "PERFORMANCE OF WORK" WHILE TRAVELING, WHERE THE TRAVEL STATUS COINCIDED WITH HIS REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, OR WHERE THE TRAVEL WAS CARRIED OUT UNDER ARDUOUS CONDITIONS. SEE 5 APP. U.S.C. 912B (SUPP. II, 1965-66) (NOW 5 U.S.C. SEC. 5542(B)(2)(A) AND (B) (1970)); 25 COMP. GEN. 399 (1945).

IT IS CLEAR THAT ALL TIME THAT COURIERS SPENT IN A TRAVEL STATUS DOES NOT QUALIFY AS "HOURS OF WORK," SOLELY BY VIRTUE OF THE FACT THAT THEY WERE TRAVELING AT THE GOVERNMENT'S DIRECTION SINCE THEY ONLY WERE INVOLVED IN THE "PERFORMANCE OF WORK" WHILE TRAVELING WHEN THEY WERE TRANSPORTING OR PROTECTING A POUCH. SEE B-179186, OCTOBER 24, 1973.

SINCE THE DESIGNATED 5-DAY 40-HOUR "WORKWEEK," WHICH EXISTED PRIOR TO JANUARY 1, 1967, DID NOT REFLECT THE COURIERS' ACTUAL "HOURS OF WORK" AND WAS, THEREFORE, INCONSISTENT WITH THE PROVISIONS OF TITLE 5, U.S.C. THE TIME MR. RAGSDALE SPENT IN A TRAVEL STATUS NOT PERFORMING WORK, WHICH COINCIDED WITH THE ARBITRARILY DESIGNATED ADMINISTRATIVE "WORKWEEK," CANNOT BE TREATED AS "HOURS OF WORK."

FURTHERMORE, WE CANNOT SAY THAT MR. RAGSDALE'S TRAVEL WAS UNDER ARDUOUS CONDITIONS SINCE THERE HAS BEEN NO SHOWING THAT MR. RAGSDALE'S TRAVEL INVOLVED SEVERE WEATHER CONDITIONS, ROUGH TERRAIN, ETC. SEE 41 COMP. GEN. 82 (1961); 51 ID. 7 (1971); 52 ID. 702, 706 (1973). FINALLY, WE DO NOT BELIEVE THE FACT THAT STATE HAS MODIFIED ITS DEFINITION OF "HOURS OF WORK" TO ALLOW FOR LAYOVER TIME IN CERTAIN INSTANCES NECESSITATES A FINDING THAT THE PREVIOUS DEFINITION WAS ERRONEOUS. THEREFORE, ON THE BASIS OF THE RECORD BEFORE US, WE CANNOT DISAGREE WITH STATE'S DEFINITION OF "HOURS OF WORK" FOR THE PERIOD IN QUESTION AND DO BELIEVE THAT IT IS CONSISTENT WITH STATUTORY AND REGULATORY PROVISIONS.

THE ANALYSIS OF MR. RAGSDALE'S HOURS OF DUTY DURING THE PERIOD IN QUESTION, WHICH STATE COMPUTED FROM HIS TRIP REPORTS, INDICATES THAT HE PERFORMED WORK IN EXCESS OF 40 HOURS A WEEK ON 6 OCCASIONS, ALL PRIOR TO JANUARY 1, 1967, TOTALING AN AGGREGATE OF 30-1/2 HOURS. THE RECORD ALSO SHOWS THAT HE PERFORMED WORK ON SEVERAL DAYS IN EXCESS OF 8 HOURS. THE LANGUAGE OF 5 APP. U.S.C. SEC. 911 (SUPP. II, 1965-66) STATES THAT AN EMPLOYEE IS ENTITLED TO PREMIUM COMPENSATION FOR "ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK OR, WITH THE EXCEPTION OF *** EMPLOYEES WHOSE BASIC COMPENSATION EXCEEDS THE MINIMUM RATE OF GS-10 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, FOR WHOM THE FIRST FORTY HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK, IN EXCESS OF EIGHT HOURS IN A DAY ***." WE HAVE BEEN INFORMED BY STATE THAT MR. RAGSDALE'S RATE OF PAY DURING THE PERIOD IN QUESTION WAS GRADE FSS-6, STEP 6, $8,401 PER ANNUM FROM JULY 24, 1966, TO JULY 30, 1966, AND GRADE FSS-6, STEP 7, $8,641 PER ANNUM FROM JULY 31, 1966, TO THE END OF PERIOD IN QUESTION.

STATE REPORTS THAT THE WORK IN EXCESS OF 8 HOURS A DAY WAS NOT COMPENSABLE SINCE MR. RAGSDALE'S SALARY RATE EXCEEDED THE MINIMUM RATE OF GS-10. WE AGREE SINCE MR. RAGSDALE HAD FOR THE PERIOD IN QUESTION A WORKWEEK, WHICH WAS, IN EFFECT, A FIRST 40-HOUR WORKWEEK AND HIS SALARY, EXCEPT FOR THE ADMINISTRATIVE WORKWEEK OF JULY 24, 1966, EXCEEDED THE MINIMUM RATE OF GS-10 ($8,421). AS FOR THE JULY 24 WORKWEEK, MR. RAGSDALE WOULD NOT BE ENTITLED TO OVERTIME PAY FOR THOSE HOURS IN EXCESS OF 8 HOURS PER DAY IN THAT WEEK BECAUSE THE EFFECTIVE DATE OF THE STATUTE PROVIDING FOR PAYMENT OF SUCH OVERTIME (SECTION 404 OF PUBLIC LAW 89-504, JULY 18, 1966, 80 STAT. 297) WAS JULY 31, 1966. SEE SECTION 410 OF THE PUBLIC LAW 89-504, 80 STAT. 300.

STATE HAS ALSO TAKEN THE POSITION THAT THE ADMINISTRATIVE PRACTICE PRIOR TO JANUARY 1, 1967, OF NOT PAYING OVERTIME FOR HOURS OF WORK IN EXCESS OF 40 HOURS, BUT RATHER SCHEDULING COURIER WORK SO AS TO INCLUDE SOME WEEKS WITH MORE AND SOME WITH LESS THAN 40 HOURS, WAS CONSISTENT WITH THE GOVERNING STATUTES BY CONSTRUING THIS PRACTICE AS ONE IN WHICH OVERTIME WAS AUTHORIZED AND COMPENSATORY TIME OFF GRANTED THEREFOR. STATE CLAIMS THAT THIS LONG-STANDING COURIER SCHEDULING PRACTICE WAS FULLY UNDERSTOOD AND ACCEPTED BY THE COURIERS AND THAT THE RECURRENT ACCEPTANCE OF TIME OFF WITHOUT CHARGE TO LEAVE OVER A LONG PERIOD OF TIME MAY BE PROPERLY CONSIDERED A REQUEST FOR COMPENSATORY TIME OFF WITHIN THE MEANING OF 5 U.S.C. SEC. 912 (1964 AND SUPP. II, 1965-66).

UNDER 5 U.S.C. SEC. 912 (1964) (NOW 5 U.S.C. 5543 (1970)), COMPENSATORY TIME OFF MAY NOT BE PROVIDED IN LIEU OF PREMIUM PAY FOR IRREGULAR OR OCCASIONAL OVERTIME FOR EMPLOYEES WHOSE RATE OF PAY IS NOT IN EXCESS OF THE MAXIMUM RATE IN GRADE GS-10, UNLESS THEY REQUEST IT. (MR. RAGSDALE'S BASIC COMPENSATION, ALTHOUGH IN EXCESS OF THE MINIMUM, WAS NOT IN EXCESS OF THE MAXIMUM RATE FOR GS-10 FOR THE PERIOD IN QUESTION ($11,013).) GENERAL UNDERSTANDING THAT AN INDIVIDUAL WILL ACCEPT COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY IS NOT CONSIDERED A "REQUEST OF AN EMPLOYEE" FOR SUCH LEAVE UNDER 5 U.S.C. SEC. 912 (1964). ALSO, THE ACQUIESCENCE OF A COURIER, WHOSE GRADE WAS NOT IN EXCESS OF THE MAXIMUM RATE IN GRADE GS-10, WITH THIS POLICY CANNOT BE CONSTRUED AS A REQUEST FOR COMPENSATORY TIME OFF. SEE 53 COMP. GEN. 264, 268, (1973). THEREFORE, MR. RAGSDALE IS ENTITLED TO PREMIUM PAY FOR THE OVERTIME WORK HE PERFORMED FROM JULY 24, 1966, TO DECEMBER 31, 1966, TOTALING 30-1/2 HOURS.

NOTWITHSTANDING THE FOREGOING, HOWEVER, WE ARE OF THE OPINION THAT MR. RAGSDALE, IN FACT, DID RECEIVE AT LEAST AN EQUAL AMOUNT OF COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY, EVEN THOUGH HE HAD NOT REQUESTED IT, AS WAS REQUIRED BY THE STATUTE. IN THIS REGARD, WE NOTE FROM STATE'S ANALYSIS OF HIS WORK HOURS COMPUTED FROM HIS TRIP REPORTS THAT MR. RAGSDALE FAILED TO ACCUMULATE 40 HOURS OF WORK IN THE VAST MAJORITY OF WORKWEEKS IN THE PERIOD PRIOR TO JANUARY 1, 1967, AND THAT THE AVERAGE WORK FOR ALL SUCH WORKWEEKS DID NOT TOTAL 40 HOURS A WEEK. WHILE 5 U.S.C. SEC. 912 DID NOT EXPLICITLY STATE THAT COMPENSATORY TIME OFF IS ANOTHER FORM OF PAYMENT FOR OVERTIME WORK, IT IS WELL-ESTABLISHED THAT COMPENSATORY TIME OFF TAKES THE PLACE OF PREMIUM PAY FOR IRREGULAR OR OCCASIONAL OVERTIME WORK, SUCH AS THAT WORKED BY MR. RAGSDALE HERE. COMP. GEN. 750 (1947); 37 ID. 362 (1957). THEREFORE, SINCE MR. RAGSDALE RECEIVED COMPENSATORY TIME OFF IN A GREATER AMOUNT THAN THE COMPENSABLE HOURS OF OVERTIME, HE IS ENTITLED ONLY TO THE DIFFERENCE BETWEEN THE AMOUNT OF OVERTIME COMPENSATION HE SHOULD HAVE RECEIVED AND THE VALUE OF THE COMPENSATORY TIME OFF COVERING SUCH TIME. SEE 53 COMP. GEN. 264, 268, SUPRA.

ALTHOUGH MR. RAGSDALE DID NOT WORK 40 HOURS A WEEK IN THE VAST MAJORITY OF WORKWEEKS IN THE PERIOD PRIOR TO JANUARY 1, 1967, EVEN AFTER SUBTRACTING THE COMPENSATORY TIME OFF HE RECEIVED AND USED, WE DO NOT BELIEVE HE HAS BEEN GIVEN EXCESS PAY, WHICH WOULD BE REQUIRED TO BE SET OFF FROM ANY SUMS OTHERWISE DUE HIM, SINCE DIPLOMATIC COURIERS, AS "FULL- TIME EMPLOYEES," WERE GUARANTEED 40 HOURS OF WORK EACH WEEK, EVEN IF THERE WAS NOT ENOUGH WORK TO MAKE UP 40 HOURS.

WE HAVE FOUND NO BASIS FOR ALLOWING ANY PREMIUM OVERTIME PAY FOR THE PERIOD FROM JANUARY 1, 1967, TO MARCH 17, 1967, SINCE STATE SAYS THAT IT CHANGED ITS GUIDELINES EFFECTIVE JANUARY 1, 1967, TO PAY COURIERS ON A FIRST 40 HOURS BASIS WITH OVERTIME PAY BEING PAID FOR HOURS WORKED IN EXCESS OF 40 HOURS PER WEEK, AND COMPENSATORY TIME OFF NOT BEING REQUIRED OF COURIERS, WHOSE RATE OF PAY DID NOT EXCEED THE HIGHEST SCHEDULED RATE FOR GRADE GS-10, UNLESS SUCH COMPENSATORY TIME OFF WAS SPECIFICALLY REQUESTED AND SINCE MR. RAGSDALE'S RATE OF PAY EXCEEDED THE LOWEST SCHEDULED RATE FOR GRADE GS-10.

AS INITIALLY NOTED, MR. RAGSDALE IS ALSO RECLAIMING FOR PREMIUM COMPENSATION FOR NIGHT WORK FOR THIS SAME PERIOD. THE STATUTORY AUTHORITY FOR THE PAYMENT OF A 10 PERCENT NIGHT DIFFERENTIAL, 5 U.S.C. SEC. 921(A) (1964) (NOW 5 U.S.C. 5545(A)) PROVIDES THAT SUCH DIFFERENTIAL MAY BE PAID ONLY FOR THE PERFORMANCE OF "REGULARLY SCHEDULED WORK" BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. AS WE POINTED OUT IN 36 COMP. GEN. 657 (1957), THE LEGISLATIVE HISTORY OF THE NIGHT DIFFERENTIAL STATUTE INDICATES THAT CONGRESS INTENDED NIGHT DIFFERENTIAL TO BE "EXTRA PAY FOR WORKING ABNORMAL HOURS REGULARLY." WE HAVE SINCE DEFINED "REGULARLY SCHEDULED WORK," AS USED IN THIS STATUTE, TO MEAN WORK DULY AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AT SPECIFIED INTERVALS. 40 COMP. GEN. 397 (1961); 42 ID. 326 (1962).

HOWEVER, WE HAVE ALSO RECOGNIZED THAT AN EMPLOYEE HAS PERFORMED "REGULARLY SCHEDULED WORK" AT NIGHT, WHERE, IN ADDITION TO HIS BASIC WORKWEEK, THE EMPLOYEE IS CALLED UPON HABITUALLY AND RECURRENTLY TO PERFORM WORK AT NIGHT WHEN THE EMPLOYEE, BY VIRTUE OF THE INHERENT NATURE OF HIS EMPLOYMENT, IS REQUIRED TO REMAIN ON DUTY UNTIL THE COMPLETION OF HIS TASKS) OR UNTIL RELIEVED. SEE AVILES V. UNITED STATES, 151 CT. CL. 1 (1961); 41 COMP. GEN. 8 (1961); 42 ID. 326, SUPRA; B-159040, JULY 12, 1966; B-161775, AUGUST 10, 1967. WE BELIEVE THE PRESENT CASE IS ANALOGOUS TO THE SITUATION IN 41 COMP. GEN. 8, SUPRA, WHICH INVOLVED SECURITY COURIERS FOR THE ATOMIC ENERGY COMMISSION, WHOSE DUTIES INCLUDED THE ESCORTING OF INTERPLANT SHIPMENTS OF CLASSIFIED MATTER (RANGING FROM DOCUMENTS TO LARGE AND BULKY QUANTITIES OF MATERIALS AND STRUCTURAL COMPONENTS) TO VARIOUS INSTALLATIONS, SINCE MR. RAGSDALE ALSO WAS REQUIRED ON A HABITUAL AND RECURRENT BASIS TO PERFORM NIGHT WORK NOT ACCORDING TO A FIXED HOURS-OF WORK PATTERN IN ORDER TO COMPLETE HIS TASK OF DELIVERING THE CLASSIFIED DOCUMENTS IN HIS CUSTODY. INDEED, ALTHOUGH THE RECORD INDICATES THAT MR. RAGSDALE'S WORKWEEK WAS HIGHLY ERRATIC AND NOT ENTIRELY SUBJECT TO ADMINISTRATIVE CONTROL, THE TRIP REPORTS PREPARED BY STATE ALSO INDICATE THAT HE REGULARLY, I.E., VIRTUALLY EVERY WEEK DURING THE PERIOD IN QUESTION ALBEIT NOT IN ANY PREDICTABLE MANNER, WAS CALLED UPON TO PERFORM NIGHT WORK. AS WAS RECOGNIZED IN AVILES, SUPRA, RECURRING WORK AT NIGHT NEED NOT BE SCHEDULED IN ORDER FOR IT TO BE COMPENSABLE AS NIGHT WORK, IF THE WORK "CONTINUES FOR A PERIOD OF TIME SUFFICIENTLY LONG ENOUGH FOR THE INDIVIDUAL TO SAY THAT IT IS HIS USUAL OR CUSTOMARY EMPLOYMENT." MOREOVER, THE FACT THAT MR. RAGSDALE'S TOUR OF DUTY AFTER JANUARY 1, 1967, CONSISTED OF THE FIRST 40 HOURS, SINCE IT WAS DETERMINED THAT IT WAS IMPRACTICAL TO ESTABLISH A REGULARLY SCHEDULED TOUR OF DUTY FOR COURIERS, DOES NOT PRECLUDE THE PAYMENT OF NIGHT DIFFERENTIAL WHERE NIGHT WORK RECURS ON SUCH A REGULAR BASIS. SEE B-162347, SEPTEMBER 15, 1967.

CONSEQUENTLY, WE BELIEVE MR. RAGSDALE WAS ENTITLED TO NIGHT DIFFERENTIAL FOR THOSE HOURS HE WORKED BETWEEN 6 P.M. AND 6 A.M. FROM JULY 24, 1966, TO MARCH 17, 1967. WE SEE NO REASON TO DIFFERENTIATE BETWEEN THE PERIOD PRIOR TO JANUARY 1, 1967, AND THE PERIOD AFTER THAT DATE, INASMUCH AS THE DESIGNATED WORKWEEK IN THE PREVIOUS PERIOD DID NOT RESEMBLE MR. RAGSDALE'S ACTUAL HOURS WORKED AND HE REGULARLY PERFORMED NIGHT WORK DURING BOTH PERIODS.

WE ARE AWARE THAT OUR DECISION HEREIN WITH RESPECT TO THE CLAIM OF MR. RAGSDALE FOR THE PERIOD JULY 24, 1966, TO MARCH 17, 1967, MAY SERVE AS A BASIS FOR ADJUDICATING SIMILAR CLAIMS WHICH MAY BE SUBMITTED BY DIPLOMATIC COURIERS FOR PERIODS PRIOR TO, DURING AND AFTER THIS PERIOD. IN THIS REGARD WE NOTE THAT SECTION 801 OF PUBLIC LAW 93-604, JANUARY 2, 1975, 88 STAT. 1965, SHORTENED THE 10-YEAR LIMITATION ON THE TIME WHEN CLAIMS MAY BE SUBMITTED TO OUR OFFICE TO 6 YEARS, EFFECTIVE JULY 2, 1975. CONSEQUENTLY, THOSE CLAIMS WHICH MAY BE AFFECTED BY EITHER THE 10-YEAR LIMITATION OR THE 6-YEAR LIMITATION OR BOTH SHOULD BE FORWARDED TO OUR TRANSPORTATION AND CLAIMS DIVISION (GENERAL CLAIMS) FOR RECORDING UNDER 4 GAO SEC. 7.1. FURTHERMORE, WE NOTE THAT PRIOR TO THE ENACTMENT OF SECTION 404(A)(1)(2) OF PUBLIC LAW 89-504, JULY 18, 1966, 80 STAT. 297, THE CONTROLLING RATE OF PAY WITH RESPECT TO PAYMENT OF OVERTIME COMPENSATION WAS THE MINIMUM RATE FOR GRADE GS-9 RATHER THAN THE MINIMUM RATE FOR GRADE GS-10, CURRENTLY IN EFFECT. SECTION 404(B) OF THAT LAW ALSO RAISED THE GRADE FOR WHICH COMPENSATORY TIME OFF COULD BE REQUIRED OF AN EMPLOYEE IN LIEU OF OVERTIME PAY FROM THE MAXIMUM RATE FOR GRADE GS-9 TO THE MAXIMUM RATE FOR GRADE GS-10.

IN ACCORDANCE WITH THE FOREGOING, MR. RAGSDALE'S CASE IS RETURNED TO OUR TRANSPORTATION AND CLAIMS DIVISION FOR PROCESSING IN ACCORDANCE WITH THE ABOVE.