B-115805, JULY 1, 1953, 33 COMP. GEN. 4

B-115805, JULY 1, 1953, 33 COMP. GEN. 4

COMPENSATION - NIGHT WORK - REGULAR TOUR OF DUTY REQUIREMENT - WHEN ACTUALLY EMPLOYED EMPLOYEES UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND SECTION 25.232C OF THE FEDERAL EMPLOYEES PAY REGULATIONS, NIGHT DIFFERENTIAL IS PAYABLE TO A WHEN ACTUALLY EMPLOYED EMPLOYEE FOR DUTY PERFORMED WHILE WORKING INTERMITTENTLY OR CONSISTENTLY ON TEMPORARY ASSIGNMENT TO A REGULARLY SCHEDULED TOUR OF DUTY BETWEEN 6 P.M. AND 6 A.M., EVEN THOUGH SUCH EMPLOYEE HAS NO REGULAR TOUR OF DUTY.

ACTING COMPTROLLER GENERAL KANE TO THE SECRETARY OF LABOR,JULY 1, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1953, REQUESTING DECISION UPON THE QUESTIONS THEREIN STATED, AS FOLLOWS:

1. IS NIGHT DIFFERENTIAL PAYABLE TO A WAE EMPLOYEE WHO HAS NO REGULAR TOUR OF DUTY OF HIS OWN FOR DUTY PERFORMED WHILE WORKING INTERMITTENTLY ON TEMPORARY ASSIGNMENT TO A REGULARLY SCHEDULED TOUR OF DUTY BETWEEN 6 P.M. AND 6 A.M. ?

2. IS NIGHT DIFFERENTIAL PAYABLE TO A WAE EMPLOYEE WHO CONSISTENTLY WORKS A REGULARLY SCHEDULED TOUR OF DUTY BETWEEN 6 P.M. AND 6 A.M. FOR A PERIOD OF 4 TO 8 WEEKS, EVEN THOUGH NO REGULAR TOUR OF DUTY HAS BEEN ESTABLISHED FORMALLY FOR HIM?

IT IS EXPLAINED IN YOUR LETTER THAT IN CONNECTION WITH THE OPERATION OF THE MEXICAN FARM LABOR PROGRAM, YOUR DEPARTMENT MAINTAINS FIVE RECEPTION CENTERS AT POINTS ALONG THE MEXICAN BORDER THROUGH WHICH MEXICAN FARM LABORERS ARE ADMITTED TO THIS COUNTRY AND RETURNED TO MEXICO. BECAUSE OF THE LARGE SEASONAL AND DAILY VARIATIONS IN THE WORK LOAD IT HAS BEEN FOUND NECESSARY TO MAKE MOST OF THE APPOINTMENTS TO THE STAFF AT THESE CENTERS UPON A WAE BASIS AND TO MAKE THE HOURS OF DUTY OF INDIVIDUAL EMPLOYEES UPON A FULL TIME BASIS SUBJECT TO DAILY ADJUSTMENT. BECAUSE OF THE NECESSITY OF MAINTAINING MINIMUM GUARD SERVICE AT ALL TIMES, REGULAR TOURS OF DUTY 8 A.M. TO 4 .M., 4 P.M. TO 12 MIDNIGHT, AND 12 MIDNIGHT TO 8 A.M., HAVE BEEN ESTABLISHED FOR GUARD DUTY, AND THE GUARD FORCE WORKS UPON A ROTATION BASIS. IN ADDITION TO THE MINIMUM REGULAR GUARD FORCE, IT APPEARS THAT YOUR DEPARTMENT EMPLOYS A NUMBER OF EXTRA GUARDS UPON A WAE BASIS TO BE CALLED FOR DUTY WHENEVER THE PRESENCE OF LARGE NUMBERS OF MIGRANT LABORERS REQUIRE THE SERVICES OF MORE THAN THE MINIMUM NUMBER. DURING THE QUIET PERIOD OF THE YEAR, THESE EXTRA WAE GUARDS MAY NOT BE CALLED FOR DUTY AT ALL BUT AS THE RUSH SEASON APPROACHES, THEY ARE CALLED IN OCCASIONALLY, AND WHEN RUSH SEASON IS AT HAND, THEY WORK PRACTICALLY A FULL TIME BASIS FOR A PERIOD OF FROM 4 TO 8 WEEKS AND IT APPEARS TO BE IN RESPECT TO THESE EXTRA GUARDS THAT YOUR QUESTIONS ARE DIRECTED.

SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, AS AMENDED BY SECTION 10 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, PROVIDES AS FOLLOWS:

ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH, INCLUDING OVERTIME, FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE OF 10 PER CENTUM IN EXCESS OF HIS RATE OF BASIC COMPENSATION FOR DUTY BETWEEN OTHER HOURS.

YOU STATE THAT WHILE IT SEEMS CLEAR THAT THE ABOVE-QUOTED SECTION OF THE STATUTE APPLIES TO ALL OF THE GUARDS WHO WORKED BETWEEN HOURS OF 6 P.M. AND 6 A.M., A QUESTION HAS BEEN RAISED AS TO THE EFFECT OF SECTION 25.232C (DESIGNATED AS SECTION 25.332C IN YOUR SUBMISSION) OF THE FEDERAL EMPLOYEES PAY REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION UPON THE EXTRA GUARDS EMPLOYED UPON A WAE BASIS WHO ARE CALLED OCCASIONALLY OR TEMPORARILY TO SERVE ONE OF THE NIGHT TOURS OF DUTY, THAT SECTION OF THE REGULATION READING AS FOLLOWS:

TEMPORARY ASSIGNMENT TO DIFFERENT TOUR OF DUTY. THE PAYMENT OF THE NIGHT PAY DIFFERENTIAL IS AUTHORIZED FOR NIGHT WORK PERFORMED WHEN AN EMPLOYEE IS ASSIGNED TEMPORARILY TO A REGULARLY SCHEDULED TOUR OF DUTY OTHER THAN HIS OWN REGULAR TOUR OF DUTY.

SPECIFICALLY YOU STATE THAT THE QUESTIONS ABOVE QUOTED FROM YOUR LETTER ARISE OUT OF THE USE OF THE WORDS "OTHER THAN HIS OWN REGULAR TOUR OF DUTY"--- HAVING REGARD FOR THE FACT THAT THE WAE GUARDS HERE INVOLVED DO NOT HAVE A REGULAR TOUR OF DUTY OF THEIR OWN.

THE CITED REGULATION IS NOT CONSIDERED AS RESTRICTING NIGHT DIFFERENTIAL TO EMPLOYEES WHO HAVE REGULAR SCHEDULED TOURS OF DUTY OF THEIR OWN; RATHER THE REGULATION IS CONSIDERED AS BEING MERELY AN AMPLIFICATION OF THE PRECEDING PARAGRAPHS AUTHORIZING NIGHT DIFFERENTIAL FOR ALL NIGHT WORK PERFORMED BY EMPLOYEES ON THEIR OWN REGULARLY SCHEDULED TOURS OF DUTY. NOR IS THE REGULATION CONSIDERED AS IN ANY WAY CHANGING OR MODIFYING THE HOLDING IN 25 COMP. GEN. 102, QUOTING FROM THE SYLLABUS:

THE PROVISIONS OF SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AUTHORIZING A DIFFERENTIAL FOR EMPLOYEES "ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY" ANY PART OF WHICH FALLS BETWEEN 6 P.M. AND 6 A.M., RELATE NOT ONLY TO ANY EMPLOYEE'S OWN TOUR OF DUTY, BUT, ALSO, TO ANY REGULARLY SCHEDULED TOUR OF DUTY AT NIGHT TO WHICH AN EMPLOYEE MAY BE ASSIGNED FOR ONE OR MORE NIGHTS OF THE BASIC WORKWEEK, FOR WHICH STRAIGHT- TIME (AS DISTINGUISHED FROM OVERTIME) COMPENSATION OTHERWISE WOULD BE PAID.

IN LINE WITH THE FOREGOING, BOTH QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE.