B-127474, FEB 7, 1975, 54 COMP GEN 662

B-127474, FEB 7, 1975, 54 COMP GEN 662

LEAVES OF ABSENCE - ANNUAL - HOLIDAYS - CHARGING PRECLUDED - WITHIN REGULARLY SCHEDULED TOUR OF DUTY - EMPLOYEES RECEIVING PREMIUM PAY EMPLOYEES OF VETERANS ADMINISTRATION (VA) HOSPITAL, CHARGED ANNUAL LEAVE ON HOLIDAYS THEY DID NOT WORK BECAUSE THEY WERE PAID PREMIUM PAY UNDER 5 U.S.C. 5545(C)(1) SHOULD HAVE LEAVE RESTORED SINCE DECISION 35 COMP. GEN. 710 (1956) INTERPRETING SECTION 5545(C)(1) STATES THAT A CHARGE AGAINST LEAVE FOR ABSENCE ON A HOLIDAY WITHIN THE REGULARLY SCHEDULED TOUR OF DUTY IS REQUIRED ONLY WHERE STANDBY ON SUCH HOLIDAY WAS REQUIRED OF EMPLOYEES AND WAS THUS CONSIDERED IN ARRIVING AT THE PERCENTAGE OF PREMIUM PAY AND STANDBY WAS NOT REQUIRED OF EMPLOYEES ON HOLIDAYS IN QUESTION.

IN THE MATTER OF VETERANS ADMINISTRATION EMPLOYEES' PREMIUM PAY, FEBRUARY 7, 1975:

THIS ACTION IS AT THE REQUEST OF MR. D. LEE ALCORN, MR. RODGER D. EPPLER, MR. JOHN H. GARY, JR., AND MR. CHARLES B. REED, EMPLOYEES OF THE VETERANS ADMINISTRATION, WHO APPEAL THE DECISION OF THE VETERANS ADMINISTRATION (VA) TO CHARGE THEM ANNUAL LEAVE FOR HOLIDAYS DURING WHICH THEY DID NOT WORK ON THE BASIS THAT THEY WERE BEING PAID PREMIUM PAY.

THE RECORD SHOWS THAT THE EMPLOYEES ARE X-RAY TECHNICIANS EMPLOYED AT THE VETERANS ADMINISTRATION HOSPITAL, DALLAS, TEXAS. THE EMPLOYEES ARE PAID PREMIUM PAY IN ADDITION TO THEIR BASE PAY PURSUANT TO 5 U.S.C. 5545(C)(1) (1970) BECAUSE THEY ARE REQUIRED TO BE ON STANDBY STATUS FOR PERIODS BEYOND THEIR REGULAR DUTY HOURS. THE RECORD SHOWS FURTHER THAT ALTHOUGH THE STANDBY DUTY IS NECESSARY, THE X-RAY TECHNICIANS ARE SELDOM CALLED BACK TO THE HOSPITAL FOR ACTIVE DUTY.

PURSUANT TO A MEMORANDUM DATED JUNE 12, 1974, FROM THE DIRECTOR, FIELD OPERATIONS, REGION 5, VA, TO THE DIRECTOR, VETERANS ADMINISTRATION HOSPITAL, DALLAS, THE EMPLOYEES WERE CHARGED ANNUAL LEAVE FOR HAVING NOT WORKED ON TWO SEPARATE HOLIDAYS IN 1974, WASHINGTON'S BIRTHDAY AND MEMORIAL DAY. IT ALSO APPEARS THAT THE VA INTENDS TO CHARGE THE EMPLOYEES ANNUAL LEAVE FOR ALL HOLIDAYS NOT WORKED BY THEM IN THE PAST. THE EMPLOYEES APPEAL THE VA'S RULING AND ASK THAT WE OVERRULE OUR DECISION 35 COMP. GEN. 710 (1956) SINCE THE REASONING IN THAT DECISION IS APPARENTLY BEING USED BY THE VA AS THE BASIS FOR CHARGING THE CLAIMANTS ANNUAL LEAVE FOR HAVING NOT WORKED ON DAYS DESIGNATED AS NATIONAL HOLIDAYS.

SECTION 5545(C)(1) OF TITLE 5, U.S. CODE, STATES THE FOLLOWING WITH RESPECT TO COMPENSATION FOR STANDBY DUTY:

(C) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, MAY PROVIDE THAT -

(1) AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK, SHALL RECEIVE PREMIUM PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS OF THIS SUBCHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF HIS REGULARLY SCHEDULED WEEKLY TOUR. PREMIUM PAY UNDER THIS PARAGRAPH IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT IN EXCESS OF 25 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 (OR, FOR A POSITION DESCRIBED IN SECTION 5542(A)(3) OF THIS TITLE, OF THE BASIC PAY OF THE POSITION), BY TAKING INTO CONSIDERATION THE NUMBER OF HOURS OF ACTUAL WORK REQUIRED IN THE POSITION, THE NUMBER OF HOURS REQUIRED IN A STANDBY STATUS AT OR WITHIN THE CONFINES OF THE STATION, THE EXTENT TO WHICH THE DUTIES OF THE POSITION ARE MADE MORE ONEROUS BY NIGHT, SUNDAY, OR HOLIDAY WORK, OR BY BEING EXTENDED OVER PERIODS OF MORE THAN 40 HOURS A WEEK, AND OTHER RELEVANT FACTORS ***

IN OUR DECISION AT 35 COMP. GEN. 710, SUPRA, IN WHICH WE EXPLAINED THE ABOVE PROVISION, WE STATED IN PART:

THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 208(A) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1105, 5 U.S.C. 926, PROVIDES IN SECTION 401(1) THAT PREMIUM COMPENSATION MAY BE AUTHORIZED TO EMPLOYEES HAVING LONGER THAN ORDINARY TOURS OF DUTY, A SUBSTANTIAL PART OF WHICH IS PERFORMED IN A STANDBY STATUS. ALL HOURS OF DUTY, INCLUDING THE TIME IN A STANDBY STATUS, ARE INCLUDED IN THEIR REGULARLY SCHEDULED HOURS OF DUTY. THE AMOUNT OF PREMIUM COMPENSATION TO BE PAID UNDER SECTION 401(1) IS BASED ON CERTAIN DESIGNATED FACTORS INCLUDING "THE EXTENT TO WHICH THE DUTIES *** ARE MADE MORE ONEROUS BY *** HOLIDAY WORK." CLEARLY, THE CONGRESS CONTEMPLATED THAT EMPLOYEES RECEIVING PREMIUM COMPENSATION BECAUSE OF CONSIDERATIONS INCLUDING THE NECESSITY FOR HOLIDAY WORK WOULD, IN FACT, BE REQUIRED TO WORK ON HOLIDAYS. TO HOLD THAT SUCH EMPLOYEES MAY BE EXCUSED FROM WORK WITHOUT CHARGE TO LEAVE ON A HOLIDAY FALLING WITHIN THEIR REGULARLY SCHEDULED TOURS OF DUTY WOULD DIRECTLY CONTRADICT THE BASIS FOR AUTHORIZING THE PREMIUM. ***

ACCORDINGLY, WE AGREE WITH YOUR VIEW THAT ADMINISTRATIVE REGULATIONS PRESCRIBED UNDER THE AUTHORITY GIVEN IN SECTION 30.801 OF THE ANNUAL AND SICK LEAVE REGULATIONS, L-1-30, OF THE FEDERAL PERSONNEL MANUAL, MAY PROPERLY REQUIRE THAT EMPLOYEES RECEIVING PREMIUM COMPENSATION UNDER SECTION 401(1), IN PART BECAUSE THEIR POSITIONS REQUIRE HOLIDAY WORK, SHOULD BE CHARGED LEAVE FOR HOLIDAYS NOT WORKED WHEN SUCH HOLIDAYS FALL WITHIN THEIR REGULARLY SCHEDULED TOURS OF DUTY.

THE RULE IN THIS DECISION HAS BEEN RESTATED IN FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 990-2, BOOK 550, SEC. 1-8B(2) (JULY 12, 1971), AS FOLLOWS:

(2) HOLIDAY ABSENCE. (A) AN EMPLOYEE PAID ADDITIONAL ANNUAL PAY COMMISSION'S REGULATIONS FOR REGULARLY SCHEDULED STANDBY DUTY IS UNDER SECTION 5545(C)(1) OF TITLE 5, U.S.C. AND THE CHARGED LEAVE FOR ABSENCE ON HOLIDAYS THAT FALL WITHIN HIS REGULAR TOUR OF DUTY.

IT IS CLEAR FROM OUR DECISION 35 COMP. GEN. 710, SUPRA, THAT SINCE SECTION 5545(C)(1) PROVIDES THAT THE AMOUNT OF PREMIUM PAY SHALL BE DETERMINED FROM FACTORS INCLUDING THE EXTENT TO WHICH THE EMPLOYEE'S DUTIES ARE MADE MORE ONEROUS BY HOLIDAY WORK, AN EMPLOYEE WOULD HAVE TO BE CHARGED LEAVE FOR HIS ABSENCE IF HE TOOK THE DAY OFF ON A HOLIDAY WHICH WAS CONSIDERED IN SETTING HIS PREMIUM PAY. HOWEVER, IT APPEARS FROM A REPORT BY THE HOSPITAL DIRECTOR OF THE VETERANS ADMINISTRATION HOSPITAL IN DALLAS THAT HOLIDAY PAY WAS NOT CONSIDERED IN ARRIVING AT THE APPROPRIATE PERCENTAGE OF STANDBY PREMIUM PAY TO BE PAID THE CLAIMANTS FOR THE HOLIDAYS FOR WHICH THEY WERE CHARGED LEAVE. APPARENTLY, THE CLAIMANTS WERE NOT ALL REQUIRED TO REMAIN ON STANDBY DUTY DURING ALL OF THE HOLDIAYS DESIGNATED BY 5 U.S.C. 6103 (1970). RATHER, IT APPEARS THAT, DUE TO THE REDUCED HOSPITAL WORKLOAD ON HOLIDAYS, IT WAS ONLY NECESSARY FOR ONE X-RAY TECHNICIAN TO BE ON STANDBY DUTY. SINCE SECTION 5545(C)(1) PROVIDES FOR PREMIUM PAY FOR THAT STANDBY DUTY REQUIRED OF AN EMPLOYEE, IT WOULD FOLLOW THAT WHERE AN EMPLOYEE WAS NOT SCHEDULED TO PERFORM STANDBY DUTY ON A HOLIDAY AND, THUS, THE COMPUTATION OF HIS PREMIUM PAY DID NOT TAKE INTO ACCOUNT THE EXTENT TO WHICH PERFORMING WORK ON THAT HOLIDAY WOULD HAVE BEEN MADE MORE ONEROUS TO HIM, SECTION 5545(C)(1) WOULD NOT REQUIRE THAT THE EMPLOYEE WORK ON THE HOLIDAY OR BE CHARGED LEAVE FOR HIS ABSENCE. THE ABOVE CONCLUSION IS CONSISTENT WITH FPM SUPPLEMENT 990-2, BOOK 550, SEC. 1 -8B(2), CITED ABOVE, WHICH REQUIRES A CHARGE OF ANNUAL LEAVE FOR ABSENCE ON HOLIDAYS WITHIN AN EMPLOYEE'S REGULAR TOUR OF DUTY, AS THAT PROVISION, WHICH IS BASED ON OUR INTERPRETATION AT 35 COMP. GEN. 710, SUPRA, ASSUMES THAT THE SETTING OF THE PREMIUM PAY TOOK INTO CONSIDERATION THE NECESSITY OF HOLIDAY WORK. IN THE INSTANT CASE, SINCE STANDBY DUTY WAS NOT REQUIRED OF THE EMPLOYEES ON THE HOLIDAYS IN QUESTION AND WAS, THEREFORE, NOT CONSIDERED IN THE SETTING OF THEIR PREMIUM PAY, NO CHARGE TO LEAVE WAS REQUIRED TO BE MADE. DECISION 35 COMP. GEN. 710, SUPRA, IS AMPLIFIED TO THE EXTENT STATED HEREIN.

ACCORDINGLY THE VETERANS ADMINISTRATION SHOULD RESTORE THE LEAVE CHARGED TO THE EMPLOYEES.