B-144385, DECEMBER 19, 1960, 40 COMP. GEN. 379

B-144385, DECEMBER 19, 1960, 40 COMP. GEN. 379

CIVILIAN PERSONNEL - COMPENSATION - CALL-BACK OVERTIME - DUTY PERFORMANCE CALL-BACK OVERTIME COMPENSATION TO OFFICERS AND EMPLOYEES WHO ARE CALLED BACK TO DUTY FOR UNSCHEDULED OVERTIME AUTHORIZED UNDER SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912A, IS NOT CONDITIONED UPON THE ACTUAL PERFORMANCE OF DUTY IN VIEW OF THE LEGISLATIVE HISTORY OF THE SECTION WHICH INDICATES A CONGRESSIONAL INTENT TO CONFORM CALL-BACK OVERTIME FOR GOVERNMENT EMPLOYEES TO THE EXISTING INDUSTRIAL PRACTICE WHICH DOES NOT REQUIRE THE PERFORMANCE OF SOME DUTY AS A CONDITION TO ENTITLEMENT TO CALL-BACK OVER-TIME COMPENSATION. OVERTIME COMPENSATION FOR REGULARLY SCHEDULED OVERTIME DUTY UNLIKE IRREGULAR, UNSCHEDULED CALL-BACK OVERTIME UNDER SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912A, IS PAYABLE ONLY FOR TIME ACTUALLY WORKED AND, IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY FOR SO-CALLED "REPORTING PAY," OVERTIME COMPENSATION FOR REGULARLY SCHEDULED OVERTIME DUTY MAY NOT BE PAID WHEN NO WORK IS PERFORMED.

TO THE SECRETARY OF THE NAVY, DECEMBER 19, 1960:

ON NOVEMBER 3, 1960, THE ASSISTANT SECRETARY OF THE NAVY WROTE US AS FOLLOWS:

CERTAIN QUESTIONS HAVE ARISEN IN THE DEPARTMENT OF THE NAVY AS TO THE ENTITLEMENT OF EMPLOYEES TO PAY UNDER CIRCUMSTANCES SET OUT BELOW.

SITUATION ONE.

PRIOR TO A SUBMARINE BEING TAKEN TO SEA FOR A TRIAL RUN THREE EMPLOYEES WITH A SCHEDULED WORKWEEK OF MONDAY THROUGH FRIDAY WERE ORDERED TO REPORT FOR DUTY ON THE FOLLOWING SUNDAY IN CONNECTION WITH THE DOCKING OF THE SUBMARINE UPON ITS RETURN TO PORT. IT WAS ANTICIPATED THAT THE SUBMARINE WOULD RETURN TO PORT ON SUNDAY. THE SUBMARINE WAS ACTUALLY BROUGHT INTO PORT ON SATURDAY, A DAY EARLIER THAN WAS ANTICIPATED AND EARLIER THAN THE THREE EMPLOYEES WERE ORDERED TO REPORT FOR DUTY. TWO OF THE MEN WERE CONTACTED AND TOLD NOT TO REPORT ON SUNDAY. ONE LIVED SOME DISTANCE FROM THE SHIPYARD AND COULD NOT BE REACHED FOR NOTIFICATION. THE LATTER EMPLOYEE TRAVELED ABOUT FORTY MILES IN REPORTING ON SUNDAY. UPON REACHING THE SHIPYARD GATE HE WAS TOLD THAT THE SUBMARINE HAD DOCKED ON THE PREVIOUS DAY AND THAT THERE WAS NO WORK FOR HIM. THE EMPLOYEE WAS NOT PERMITTED TO CHECK IN.

SITUATION TWO.

ON FRIDAY, 18 DECEMBER, A GROUP OF CARPENTERS AND SHIPWRIGHTS WHOSE SCHEDULED WORKWEEK IS MONDAY THROUGH FRIDAY WAS ORDERED TO REPORT FOR WORK AT 8:00 A.M. ON SATURDAY, 19 DECEMBER, TO WORK ON THE FLIGHT DECK OF A CARRIER. THE MEN REPORTED AS ORDERED. SOME OF THE MEN WERE MET BY THE LEADINGMAN AT THE CLOCK HOUSE LOCATED ON THE DOCK ALONGSIDE THE SHIP WHERE THEY WERE INFORMED THAT INCLEMENT WEATHER PRECLUDED THEIR WORKING THAT DAY. THESE MEN WERE DISMISSED FROM DUTY. OTHERS OF THE GROUP HAD ARRIVED EARLIER AND HAD GONE ABOARD THE SHIP. THE LATTER GROUP OF MEN HAD PICKED UP THEIR TOOLS AND WERE WAITING IN A SHELTER ON THE FLIGHT DECK WHEN THE LEADINGMAN LOCATED THEM AND DISMISSED THEM FOR THE DAY. SEVERAL OF THE MEN OF BOTH GROUPS HAD STOPPED AT THEIR LOCKERS IN THE SHOP TO DON THEIR WORK CLOTHES, SAFETY SHOES AND HARD HATS BEFORE PUNCHING THE TIME CLOCK. OTHERS KEPT THESE ITEMS OF CLOTHING IN THEIR TOOL BOXES WHICH WERE STORED ABOARD THE CARRIER.

IN EACH OF THESE SITUATIONS IT IS CONSIDERED THAT, HAD A FULL SHIFT BEEN WORKED BY THE MEN, THEY WOULD HAVE PERFORMED UNSCHEDULED OVERTIME DUTY SINCE THEIR WORKWEEK HAD NOT BEEN CHANGED AS REQUIRED BY NAVY CIVILIAN PERSONNEL INSTRUCTION 85.2-2.

IN ADDITION TO THE PROVISION FOR PAYMENT OF CALL-BACK OVERTIME CONTAINED IN SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912A, NCPI 85.3-4 PROVIDES FOR SUCH PAYMENT TO EMPLOYEES WHOSE WAGES ARE SET IN ACCORDANCE WITH PREVAILING RATES.

WHILE IN 25 COMP. GEN. 151 IT WAS HELD BY THE COMPTROLLER GENERAL THAT ENTITLEMENT TO OVERTIME PAY IS BASED UPON THE ACTUAL PERFORMANCE OF DUTY DURING THE PRESCRIBED OVERTIME PERIOD, IT WAS FURTHER HELD BY THE COMPTROLLER GENERAL IN 35 COMP. GEN. 448 THAT SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT APPEARS TO BE FOR THE PURPOSE OF COMPENSATING THE EMPLOYEE FOR THE INCONVENIENCE OF BEING CALLED BACK TO PERFORM UNSCHEDULED DUTY, RATHER THAN AS A PAYMENT ON A TIME BASIS. YOUR DECISION OF THE FOLLOWING QUESTIONS IS THEREFORE REQUESTED:

1. IS CALL-BACK OVERTIME COMPENSABLE WHEN AN EMPLOYEE, IN OBEDIENCE TO ORDERS, REPORTS TO COMPETENT AUTHORITY AT AN ACTIVITY AS IN THE SITUATIONS OUTLINED ABOVE? IS IT MATERIAL OR CONTROLLING THAT SOME EMPLOYEES PUNCHED THE TIME CLOCK AND OTHERS DID NOT?

2. IN SITUATION ONE, REASONABLE EFFORT WAS MADE TO PREVENT THE EMPLOYEES FFROM REPORTING TO DUTY. DOES THIS AFFECT THE ENTITLEMENT OF THE EMPLOYEE WHO REPORTED?

3. DID ALL OF THE EMPLOYEES IN SITUATION TWO PERFORM "WORK" AS THE TERM IS USED IN SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 BY REPORTING TO THE SHIPYARD IN OBEDIENCE TO ORDERS AND PLACING THEMSELVES IN READINESS TO PERFORM WORK?

4. IN SITUATION TWO THE EMPLOYEES REPORTED TO THE SHIPYARD BEFORE 8:00 A.M. ON 19 DECEMBER, THE TIME THE WORKDAY WAS SCHEDULED TO BEGIN. IS THE FACT THAT SOME OF THE MEN MAY HAVE BEEN DISMISSED BEFORE 8:00 A.M. AND OTHERS DISMISSED AFTER 8:00 A.M., MATERIAL OR CONTROLLING IN DETERMINING THE ELIGIBILITY OF THE RESPECTIVE GROUPS FOR CALL-BACK OVERTIME PAY?

5. IN SITUATION TWO, ABOVE, IF OVERTIME WORK HAD BEEN SCHEDULED ON SATURDAY FOR THREE CONSECUTIVE WEEKS AND THE EMPLOYEES HAD BEEN NOTIFIED OF THIS REGULARLY SCHEDULED OVERTIME IN ACCORDANCE WITH NCPI 85.2-2A, COULD THE EMPLOYEES BE COMPENSATED IF THEY WERE DISMISSED BEFORE ACTUAL WORK OPERATIONS WERE SCHEDULED TO BEGIN AT 8:00 A.M.?

IF THE DISMISSAL HAD BEEN AT 8:15 A.M. WOULD THE ANSWER BE DIFFERENT? OTHER WORDS, IS THERE SIGNIFICANT DIFFERENCE FOR PURPOSES OF PAYING CALL- BACK OVERTIME BETWEEN SITUATIONS INVOLVING UNSCHEDULED OVERTIME AND SCHEDULED OVERTIME WHEN DISMISSAL OCCURS?

SECTION 205 OF THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, 68 STAT. 1109, AMENDED THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, BY ADDING A NEW SECTION 203, 5 U.S.C. 912A, WHICH READS AS FOLLOWS:

SEC. 203. FOR THE PURPOSE OF THIS ACT, ANY UNSCHEDULED OVERTIME WORK PERFORMED BY ANY OFFICER OR EMPLOYEE ON A DAY WHEN NO WORK WAS SCHEDULED FOR HIM, OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT, SHALL BE CONSIDERED TO BE AT LEAST TWO HOURS IN DURATION. (ITALICS SUPPLIED.)

THE QUESTIONS PRESENTED RAISE THE ISSUE OF WHETHER THE PERFORMANCE OF AT LEAST SOME DUTY INCIDENT TO A CALL-BACK FOR OVERTIME IS A CONDITION PRECEDENT TO ENTITLEMENT TO PAYMENT OF THE AUTHORIZED MINIMUM OF TWO HOURS' OVERTIME COMPENSATION PROVIDED BY THE STATUTE JUST QUOTED. THE LITERAL LANGUAGE OF SECTION 203 WOULD REQUIRE PERFORMANCE OF OVERTIME WORK FOR HOWEVER BRIEF AN INTERVAL AS A CONDITION TO THE GUARANTEED PAY. DOUBT, HOWEVER, THAT SUCH A CONSTRUCTION IS REQUIRED AND WHETHER, ALSO, SUCH A CONSTRUCTION MEETS THE PURPOSE OF THE LEGISLATION OR THE INTENT OF THE CONGRESS AS EVIDENCED BY COMMENTS IN THE SEVERAL COMMITTEE REPORTS.

THE LANGUAGE WHICH BECAME SECTION 203 WAS CONTAINED IN TWO BILLS, NAMELY, S. 2665 AND H.R. 2263, THE LATTER OF WHICH WAS ENACTED INTO LAW. SENATE REPORT NO. 1190, TO ACCOMPANY S. 2665, 83D CONGRESS, COMMENTED ON THE LANGUAGE OF THE SECTION AS FOLLOWS:

THE BILL ALSO GUARANTEES A MINIMUM OF 2 HOURS' PAY AT THE OVERTIME RATE FOR ANY FEDERAL EMPLOYEE CALLED BACK FOR OVERTIME WORK ON A NONWORKDAY OR DURING HIS OFF-DUTY HOURS. THIS IS IN CONFORMITY WITH PRESENT INDUSTRY PRACTICES (ITALICS SUPPLIED.)

HOUSE REPORT NO. 2454, ON THE SAME BILL CONTAINED THE FOLLOWING LANGUAGE:

THE NEW SECTION 203 PROVIDES A MINIMUM OF 2 HOURS OF PAY AT THE OVERTIME RATE FOR ANY EMPLOYEE WHO IS CALLED BACK TO PERFORM UNSCHEDULED OVERTIME WORK EITHER ON A REGULAR WORKDAY AFTER HE HAS COMPLETED HIS REGULAR SCHEDULE OF WORK AND LEFT HIS PLACE OF EMPLOYMENT OR ON ONE OF THE DAYS WHEN HE IS OFF DUTY. (ITALICS SUPPLIED.)

AN IDENTICAL STATEMENT APPEARS IN THE CONFERENCE REPORT TO ACCOMPANY H.R. 2263. LANGUAGE IN SENATE REPORT NO. 1992 TO ACCOMPANY H.R. 2263 SUBSTANTIALLY IS SIMILAR.

IN NONE OF THESE STATEMENTS IS IT SUGGESTED THAT THE PERFORMANCE OF SOME DUTY IS AN ESSENTIAL REQUIREMENT TO ENTITLEMENT TO THE GUARANTEED PAY. THE CIVIL SERVICE COMMISSION--- WHICH AGENCY WE UNDERSTAND SPONSORED THIS PROVISION--- COMMENTED AS FOLLOWS IN ITS LETTER DATED FEBRUARY 19. 1954, APPEARING IN SENATE REPORT NO. 1992, ACCOMPANYING H.R. 2263:

SECTION 202 (D) OF THIS TITLE WOULD GUARANTEE A MINIMUM OF 2 HOURS' PAY AT OVERTIME RATE FOR ANY EMPLOYEE CALLED IN FOR OVERTIME WORK ON A NONWORKDAY OR DURING OFF-HOURS. THIS WOULD BE GENERALLY CONSISTENT WITH INDUSTRY PRACTICE, AND WOULD PROTECT EMPLOYEES FROM BEING CALLED IN FOR ASSIGNMENTS OF SUCH DURATION THAT PAY FOR ONLY TIME ON DUTY WOULD BE GROSSLY INADEQUATE COMPENSATION FOR THE INCONVENIENCE.

COMMENTS IN THE SEVERAL REPORTS LEAD US TO THE VIEW THAT IT WAS THE PURPOSE OF THE CONGRESS TO ENACT CALL-BACK OVERTIME LEGISLATION IN CONFORMITY WITH THE THEN EXISTING INDUSTRIAL PRACTICES. THE UNITED STATES DEPARTMENT OF LABOR, BUREAU OF LABOR STATISTICS, PUBLISHED IN 1955, REPRINT NO. 2155 FROM THE MONTHLY LABOR REVIEW, DECEMBER 1954, A STUDY OF CALL-BACK PROVISIONS IN COLLECTIVE BARGAINING AGREEMENTS. THE FOLLOWING APPEARS IN THAT PUBLICATION:

AGREEMENTS FREQUENTLY * * * PROVIDE SEPARATE "CALL-BACK PAY" GUARANTEES, WHICH APPLY WHEN EMPLOYEES REPORT AT MANAGEMENT'S REQUEST OUTSIDE OF REGULARLY SCHEDULED HOURS, OR AN OFF DAY, OR AFTER THEY HAD COMPLETED THEIR REGULAR DAY'S WORK AND HAVE LEFT THE PLACE OF EMPLOYMENT. CALL BACKS USUALLY ARISE DURING EMERGENCIES AND ARE OFTEN PAID FOR AT A PREMIUM RATE SINCE THEY PROVIDE OFF-SCHEDULE WORK.

CALL-BACK PAY GUARANTEES HAVE A PURPOSE SIMILAR TO THAT OF REPORTING PAY IN COMPENSATING EMPLOYEES FOR THE INCONVENIENCE AND EXPENSE OF COMING TO WORK AND IN PENALIZING MANAGEMENT FOR CALLING IN EMPLOYEES WHO MAY NOT BE PUT TO WORK OR FOR PROVIDING AN INSUFFICIENT AMOUNT OF WORK.

TO MINIMIZE UNNECESSARY CALLS BACK TO WORK, TO COMPENSATE EMPLOYEES FOR THE INCONVENIENCE OF RETURNING TO THEIR WORK STATIONS WITHOUT BEING PUT TO WORK, AND TO ENCOURAGE COMPLIANCE WITH THE REQUESTS OF MANAGEMENT, MANY COLLECTIVE BARGAINING AGREEMENTS PROVIDE FOR MINIMUM "CALL-BACK" OR ,EMERGENCY REPORT" GUARANTEES. (ITALICS SUPPLIED.)

WE THINK IT EVIDENT FROM THE ABOVE-QUOTED MATERIAL THAT UNDER INDUSTRIAL PRACTICES CALL-BACK PAY IS NOT CONDITIONED ON THE PERFORMANCE OF SOME DUTY.

IN LIGHT OF THE FOREGOING COMMENTS CONCERNING "CALL-BACK," IT IS OUR OPINION THAT IN OTHERWISE PROPER CASES CALL-BACK OVERTIME COMPENSATION IS NOT CONDITIONED ON THE PERFORMANCE OF DUTY. THE QUESTIONS CONTAINED IN THE ASSISTANT SECRETARY'S LETTER ARE, THEREFORE, ANSWERED AS FOLLOWS:

QUESTION A IS ANSWERED IN THE AFFIRMATIVE AND QUESTION B IN THE NEGATIVE.

QUESTION 2 IS ANSWERED IN THE NEGATIVE.

QUESTION 3, IN VIEW OF OUR CONCLUSION, REQUIRES NO ANSWER.

QUESTION 4 IS ANSWERED IN THE NEGATIVE.

QUESTION 5 IS ANSWERED IN THE NEGATIVE SINCE SECTION 203 APPLIES ONLY TO UNSCHEDULED OVERTIME. IN THE ABSENCE OF LEGISLATION AUTHORIZING SO-CALLED "REPORTING PAY," SCHEDULED OVERTIME IS PAYABLE ONLY FOR TIME ACTUALLY WORKED. SEE NCPI 610.3-2B.