B-143439, AUGUST 12, 1960, 40 COMP. GEN. 88

B-143439, AUGUST 12, 1960, 40 COMP. GEN. 88

CIVILIAN PERSONNEL - COMPENSATION - OVERTIME - STANDBY TOURS OF DUTY - COMPUTATION OF PREMIUM COMPENSATION - LEAVE CHARGES IN THE ABSENCE OF A STATUTORY PROVISION REQUIRING ANNUAL PREMIUM COMPENSATION AUTHORIZED UNDER SECTION 401 (1) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 926 (1), TO BE INCLUDED WITH BASIC ANNUAL COMPENSATION FOR THE PURPOSE OF HAVING A SINGLE INDIVISIBLE COMPENSATION RATE FOR EMPLOYEES ASSIGNED TO FIREFIGHTING DUTIES, THE BASIC RATE COMPENSATION MAY BE REGARDED AS PAYMENT FOR THE BASIC 40 HOUR TOUR OF DUTY AND THE PREMIUM COMPENSATION AS PAYMENT FOR THE STANDBY SERVICE WHERE THE DEPARTMENT ESTABLISHES A BASIC WEEKLY 40-HOUR TOUR OF DUTY, WHICH IS SEPARATE AND DISTINCT FROM THE ADDITIONAL TOUR OF STANDBY DUTY, SO THAT THE COMPENSATION FOR THE SCHEDULED WORK PERIOD MAY BE COMPUTED ON THE BASIS OF THE 40-HOUR WEEK BASIC HOURLY RATE PRESCRIBED IN THE GENERAL ACCOUNTING OFFICE SALARY TABLE FOR THE ANNUAL SALARY. WHEN PREMIUM COMPENSATION FOR EMPLOYEES ASSIGNED TO FIREFIGHTING DUTIES IS BASED ON A FIXED TOUR OF STANDBY SERVICE IN ADDITION TO BUT SEPARATE AND DISTINCT FROM THE SCHEDULED WEEKLY 40-HOUR TOUR OF ACTUAL DUTY, IT IS PROPER TO FIX AN HOURLY MONETARY VALUE UPON SUCH STANDBY SERVICE, SUCH HOURLY DIFFERENTIAL RATE COULD BE ESTABLISHED BY DIVIDING THE SCHEDULE WEEKLY STANDBY HOURS INTO THE AMOUNT OF COMPENSATION EARNED DURING A WEEK WHEN FULL DUTY TIME IS PERFORMED. WHEN A DEPARTMENT ESTABLISHES THE EMPLOYEES ASSIGNED TO FIREFIGHTING DUTIES A BASIC TOUR OF ACTUAL DUTY SEPARATE AND DISTINCT FROM THE SCHEDULE TOUR OF ADDITIONAL STANDBY DUTY, THE EMPLOYEES MAY BE REGARDED AS HAVING AN "UNCOMMON" TOUR OF DUTY WITHIN THE MEANING OF SECTION 30.801 OF THE ANNUAL AND SICK LEAVE REGULATIONS, AND UNDER THIS PROVISION DEPARTMENTS HAVE AUTHORITY TO CREDIT AND CHARGE LEAVE ONLY ON THE BASIS OF THE BASIC 40-HOUR WORKWEEK, NO PREMIUM COMPENSATION BEING PAYABLE FOR ABSENCES FROM SCHEDULED STANDBY DUTY.

TO THE SECRETARY OF AGRICULTURE, AUGUST 12, 1960:

ON JULY 5, 1960, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION UPON SEVERAL QUESTIONS CONCERNING THE COMPUTATION OF PAY AND THE CREDITING AND CHARGING OF LEAVE TO CERTAIN EMPLOYEES ASSIGNED FIREFIGHTING DUTIES WHO HAVE A SCHEDULED BASIC WORKWEEK OF 40 HOURS AND, IN ADDITION THERETO, HAVE A REGULARLY SCHEDULED WEEKLY TOUR OF STANDBY DUTY. THESE EMPLOYEES RECEIVED PREMIUM COMPENSATION UPON AN ANNUAL BASIS UNDER THE AUTHORITY OF SECTION 401 (1) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926 (1).

SECTION 401 (1) IS AS FOLLOWS:

(1) ANY OFFICER OR EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIOD OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK, SHALL RECEIVE PREMIUM COMPENSATION FOR SUCH DUTY ON AN ANNUAL BASIS IN LIEU OF PREMIUM COMPENSATION PROVIDED BY ANY OTHER PROVISIONS OF THIS CHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF HIS REGULARLY SCHEDULED WEEKLY TOUR. PREMIUM COMPENSATION UNDER THIS PARAGRAPH SHALL BE DETERMINED AS AN APPROPRIATE PERCENTAGE (NOT IN EXCESS OF 25 PERCENTUM) OF SUCH PART OF THE RATE OF BASIC COMPENSATION FOR ANY SUCH POSITION AS DOES NOT EXCEED THE MINIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS-9 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, BY TAKING INTO CONSIDERATION THE NUMBER OF HOURS OF ACTUAL WORK REQUIRED IN SUCH 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 SUCH POSITION ARE MADE MORE ONEROUS BY NIGHT OR HOLIDAY WORK, OR BY BEING EXTENDED OVER PERIODS OF MORE THAN FORTY HOURS A WEEK, AND ANY OTHER RELATIVE FACTORS; * * *

THE SPECIFIC QUESTIONS PRESENTED ARE AS FOLLOWS:

1-A. SHOULD COMPENSATION FOR DUTY DURING THE SCHEDULED WORK PERIOD AS DISTINGUISHED FROM SCHEDULED STANDBY PERIOD BE COMPUTED ON THE BASIS OF THE 40-HOUR WEEK BASIC (1GAO SALARY TABLE) HOURLY RATE FOR HIS PER ANNUM SALARY?

1-B. IF ANSWER TO QUESTION "1-A" IS IN THE AFFIRMATIVE, THEN SHOULD AN HOURLY MONETARY VALUE BE PLACED ONE THE STANDBY HOUR? THIS WOULD BE ON THE PREMISE THAT THE GOVERNMENT EXPECTS PERFORMANCE OF SERVICE DURING THE STANDBY PERIOD AS SCHEDULED FOR THE WEEK, UNLESS EXCUSED WITHIN THE AUTHORITY OF THE REGULATIONS, IN EXCHANGE FOR THE AMOUNT OF DIFFERENTIAL PAY, COMPUTED AS A PERCENTAGE OF NORMAL FULL TIME BASIC PAY.

1-C. IF ANSWER TO QUESTION "1-B" IS IN THE AFFIRMATIVE, THEN WOULD IT BE APPROPRIATE TO ESTABLISH FOR EACH SUCH EMPLOYEE AN HOURLY DIFFERENTIAL RATE BY DIVIDING HIS SCHEDULE WEEKLY STANDBY HOURS INTO THE AMOUNT OF PAY DIFFERENTIAL EARNED DURING A WEEK WHEN FULL DUTY TIME IS SERVED?

EXAMPLE:$3,755 P.A. EMPLOYEE WITH WEEKLY SCHEDULE OF 40 HOURS BASE AND 38 STANDBY HOURS, CONSISTING OF 5 HOURS EACH ON THE FIVE BASIC WORKDAYS AND 13 HOURS STANDBY ON THE SIXTH DAY, WITH 25 PERCENT DIFFERENTIAL:

($72.40 WEEKLY BASE) X (25 PERCENT) EQUAL $18.10 EQUAL $0.4763 PER HOUR

38 38

SUCH AN HOURLY RATE RECOGNIZES THE DIFFERENCE IN PERSONAL EFFORT BETWEEN "WORK TIME" AND ,STANDBY TIME.'

1-D. IS IT APPROPRIATE TO CREDIT AND CHARGE ANNUAL AND SICK LEAVE ONLY ON THE BASIS OF THE BASIC 40-HOUR WORKWEEK AS DISTINGUISHED FROM THE DUTY WEEK?

SECTION 401 (1) AUTHORIZES THE HEAD OF ANY DEPARTMENT, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, TO PAY PERSONNEL ASSIGNED TO POSITIONS REQUIRING THEM TO REGULARLY REMAIN AT OR WITHIN THE CONFINES OF THEIR OFFICIAL STATION FOR LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH IS IN A STANDBY STATUS, PREMIUM COMPENSATION UPON AN ANNUAL BASIS IN LIEU OF THE PREMIUM COMPENSATION OTHERWISE PROVIDED UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. THE SECTION IS SILENT CONCERNING THE QUESTION WHETHER SUCH ANNUAL PREMIUM COMPENSATION MUST BE LUMPED TOGETHER WITH BASIC ANNUAL COMPENSATION SO THAT THEREAFTER FOR ALL PURPOSES THE EMPLOYEE IS TO BE REGARDED AS HAVING A SINGLE INDIVISIBLE COMPENSATION RATE OR WHETHER HIS BASIC RATE OF COMPENSATION MAY BE REGARDED AS PAYMENT FOR REGULAR SERVICE AND THE PREMIUM COMPENSATION BE REGARDED AS PAYMENT FOR THE PRESCRIBED STANDBY SERVICE.

WE HAVE EXAMINED THE LEGISLATIVE HISTORY OF SECTION 401 BUT HAVE FOUND NO INDICATION OF THE INTENT OF CONGRESS IN THIS REGARD. ALSO, WE HAVE EXAMINED THE REGULATIONS OF THE CIVIL SERVICE COMMISSION AND HAVE FOUND NOTHING IN THOSE REGULATIONS SPECIFICALLY COVERING THE POINT.

WE NOTE THAT SECTION 30.801 OF THE ANNUAL AND SICK LEAVE REGULATIONS, FEDERAL PERSONNEL MANUAL L-1-30 AND Z1-356, PROVIDES THAT "AGENCIES WHICH HAVE EMPLOYEES WHO WORK 24-HOUR SHIFTS OR OTHER UNCOMMON TOURS OF DUTY ARE AUTHORIZED TO PROMULGATE SUPPLEMENTAL REGULATIONS" CONSISTENT WITH THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679 AS AMENDED, 5 U.S.C. 2061, ET SEQ., "FOR ADMINISTERING LEAVE FOR SUCH EMPLOYEES.' AS POINTED OUT IN YOUR ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER, THE CIVIL SERVICE COMMISSION APPROVED A REGULATION OF THE SECRETARY OF DEFENSE PROVIDING FOR LEAVE CREDITS AND CHARGES IN PROPORTION TO THE TOTAL HOURS OF ACTUAL AND STANDBY DUTY. THAT ADMINISTRATIVE REGULATION CONTEMPLATES THAT THE LEAVE ACCRUAL AND CHARGE RATE BE INCREASED IN THE SAME PROPORTION AS THE TOTAL TOUR OF DUTY--- BASIC PLUS STANDBY--- EXCEEDS THE BASIC TOUR OF 40 HOURS. YOUR ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER SAYS IN EFFECT THAT THE DEPARTMENT OF DEFENSE FORMULA WORKS WELL WHEN THE ACTUAL WORKING PERIODS ARE INTERMIXED WITH PERIODS OF STANDBY DUTY BUT THAT SUCH FORMULA OPERATES INEQUITABLY WHEN THE PERIODS OF ACTUAL DUTY AND STANDBY DUTY ARE SEPARATE AND DISTINCT.

IN THE ABSENCE OF A STATUTORY PROVISION COVERING THE MATTER OR A SPECIFIC PROVISION IN THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, WE SHOULD NOT LIKE TO IMPOSE A HARD AND FAST RULE THAT IS REQUIRED TO BE FOLLOWED IN ALL CASES INSOFAR AS CONCERNS THE CLASS OF EMPLOYEES HERE INVOLVED. HOWEVER, WE AGREE THAT UNDER THE RELATED CIRCUMSTANCES THAT IT MIGHT BE MORE REASONABLE AND EQUITABLE, WHERE THE BASIC WEEKLY 40-HOUR TOUR OF DUTY IS SEPARATE AND DISTINCT FROM THE ADDITIONAL TOUR OF STANDBY DUTY, TO REGARD THE BASIC RATE OF COMPENSATION AS PAYMENT FOR THE BASIC TOUR OF DUTY AND THE PREMIUM COMPENSATION AS PAYMENT FOR THE STANDBY SERVICE. THIS NORMALLY WILL RESULT IN COMPUTING BASIC PAY AT THE HOURLY RATE SPECIFIED IN THE APPLICABLE GENERAL ACCOUNTING OFFICE SALARY TABLE. QUESTION 1-A IS ANSWERED ACCORDINGLY.

CONCERNING YOUR SECOND QUESTION (QUESTION 1-B), IT SUFFICES TO SAY THAT WHEN PREMIUM PAY IS BASED UPON THE PERFORMANCE OF A FIXED TOUR OF STANDBY SERVICE IN ADDITION TO--- YET SEPARATE AND DISTINCT FROM--- THE SCHEDULED TOUR OF ACTUAL DUTY, IT REASONABLY MAY BE CONCLUDED THAT IT IS APPROPRIATE TO FIX AN HOURLY MONETARY VALUE UPON SUCH STANDBY SERVICE.

YOUR THIRD QUESTION (QUESTION 1-C) IS ANSWERED IN THE AFFIRMATIVE.

CONCERNING YOUR FINAL QUESTION (QUESTION 1-D), OUR VIEW IS THAT ALTHOUGH THE BASIC TOUR OF ACTUAL DUTY OF THE CLASS OF EMPLOYEES HERE INVOLVED IS SEPARATE AND DISTINCT FROM THEIR SCHEDULED TOUR OF STANDBY DUTY, THEY REASONABLY MAY BE REGARDED AS HAVING AN "UNCOMMON" TOUR OF DUTY WITHIN THE MEANING OF SECTION 30.801 OF THE ANNUAL AND SICK LEAVE REGULATIONS, FEDERAL PERSONNEL MANUAL L-1-30. THAT SECTION MERELY AUTHORIZES AGENCIES TO PROMULGATE SUPPLEMENTAL REGULATIONS FOR ADMINISTERING LEAVE FOR SUCH EMPLOYEES. UNDER THAT SECTION WE CONSIDER IT TO BE WITHIN YOUR AUTHORITY TO CREDIT AND CHARGE LEAVE ONLY UPON THE BASIS OF THE BASIC 40-HOUR WORKWEEK. IT WOULD FOLLOW, HOWEVER, FROM OUR ANSWER TO THE PRECEDING QUESTIONS THAT NO PREMIUM PAY WOULD BE PAYABLE FOR PERIODS OF ABSENCE FROM SCHEDULED STANDBY DUTY.