B-155048, DEC. 22, 1964

B-155048, DEC. 22, 1964

TO MR. ROGER E. BERGMAN:

THIS REFERS TO YOUR LETTER RECEIVED HERE ON DECEMBER 9, 1964, REQUESTING REVIEW OF OUR DECISION OF NOVEMBER 25, 1964, B-155048, WHICH ADVISED YOU THAT YOU ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR ATTENDING TRAINING CLASSES OUTSIDE OF YOUR REGULAR TOUR OF DUTY WHILE EMPLOYED AS AN APPRENTICE AT THE MARE ISLAND NAVAL SHIPYARD.

AS A MEMBER OF THE NAVY APPRENTICE TRAINING PROGRAM AT MARE ISLAND, YOU ARE SCHEDULED TO ATTEND TWO EVENING CLASSES PER WEEK, WITHOUT COMPENSATION, IN ADDITION TO YOUR REGULAR EIGHT-HOUR DAILY TOUR OF DUTY. YOU SAY THAT SINCE REGULAR ATTENDANCE AT THE EVENING CLASSES IS ADMINISTRATIVELY REQUIRED AS A "CONDITION OF EMPLOYMENT," YOU ARE ENTITLED TO OVERTIME COMPENSATION FOR THE HOURS SPENT IN SUCH CLASSES. YOUR LATEST LETTER CONTAINS ADDITIONAL STATEMENTS IN SUPPORT OF YOUR VIEW THAT EMPLOYEE ATTENDANCE AT THE EVENING CLASSES IS REQUIRED AS A "CONDITION OF EMPLOYMENT.'

IN OUR LETTER TO YOU OF NOVEMBER 25, 1964, WE ADVISED YOU THAT THE BUREAU OF SHIPS DOES NOT CONSIDER AFTER-HOURS CLASS ATTENDANCE TO BE A CONDITION OF EMPLOYMENT SINCE NO APPLICANT HAS BEEN DENIED ENTRANCE TO THE APPRENTICESHIP PROGRAM BECAUSE OF FAILURE TO AGREE TO ATTEND SUCH CLASSES, NOR HAS ANY EMPLOYEE BEEN FORMALLY DISCIPLINED FOR FAILURE OR REFUSAL TO ATTEND THE CLASSES.

WHILE YOU INDICATE DISAGREEMENT WITH THE ADMINISTRATIVE STATEMENTS CONCERNING THE "CONDITION OF EMPLOYMENT" AND "DISCIPLINARY ACTION FOR FAILURE TO ATTEND" ASPECTS OF AFTER-HOURS CLASS ATTENDANCE, WE DO NOT BELIEVE THAT THE MATTER WARRANTS FURTHER DEVELOPMENT BY THIS OFFICE, SINCE THE BASIC ISSUE FOR DISPOSITION BY OUR OFFICE IS WHETHER OR NOT YOU ARE ENTITLED TO OVERTIME COMPENSATION FOR THE TIME SPENT IN CLASSES OUTSIDE OF YOUR REGULAR DAILY TOUR OF DUTY.

IN THE LEGISLATIVE HISTORY OF SECTION 10 OF THE TRAINING ACT, WE FIND ON PAGE 12 OF HOUSE REPRESENTATIVES REPORT NO. 1951, 85TH CONGRESS, THE FOLLOWING EXPLANATORY LANGUAGE:

"SECTION 10 AUTHORIZES THE HEAD OF EACH DEPARTMENT IN ACCORDANCE WITH REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION, TO USE FUNDS APPROPRIATED OR OTHERWISE AVAILABLE TO PAY THE SALARY OF EMPLOYEES WHO ARE BEING TRAINED (BUT NOT TO PAY THEM OVERTIME, HOLIDAY, OR NIGHT DIFFERENTIAL PAY DURING PERIODS OF TRAINING). * * * "

THE STATEMENT QUOTED ABOVE AND THE LANGUAGE OF SECTION 10 OF THE ACT, CLEARLY ESTABLISH THE INTENT OF CONGRESS TO PROHIBIT THE PAYMENT OF PREMIUM COMPENSATION TO EMPLOYEES DURING PERIODS IN WHICH THEY ARE ENGAGED IN "TRAINING" AS THAT TERM IS DEFINED IN SUBSECTION 3 (5) OF THE ACT, 5 U.S.C. 2302 (5). THAT DEFINITION IS AS FOLLOWS:

"THE TERM "TRAINING" MEANS THE PROCESS OF PROVIDING FOR AND MAKING AVAILABLE TO AN EMPLOYEE, AND PLACING OR ENROLLING SUCH EMPLOYEE IN, A PLANNED, PREPARED, AND COORDINATED PROGRAM, COURSE, CURRICULUM, SUBJECT, SYSTEM, OR ROUTINE OF INSTRUCTION OR EDUCATION, IN SCIENTIFIC, PROFESSIONAL, TECHNICAL, MECHANICAL, TRADE, CLERICAL, FISCAL, ADMINISTRATIVE, OR OTHER FIELDS WHICH ARE OR WILL BE DIRECTLY RELATED TO THE PERFORMANCE BY SUCH EMPLOYEE OF OFFICIAL DUTIES FOR THE GOVERNMENT, IN ORDER TO INCREASE THE KNOWLEDGE, PROFICIENCY, ABILITY, SKILL, AND QUALIFICATIONS OF SUCH EMPLOYEE IN THE PERFORMANCE OF OFFICIAL DUTIES; "

THE "CLASSROOM INSTRUCTION" RECEIVED BY YOU AFTER HOURS CLEARLY FALLS WITHIN THE STATUTORY DEFINITION OF "TRAINING" AS QUOTED ABOVE. THE FACT THAT, AS AN APPRENTICE, YOU RECEIVE SOME FORM OF INSTRUCTION 100 PERCENT OF YOUR TIME, WHICH INCLUDES NOT ONLY CLASSROOM INSTRUCTION BUT ALSO TIME IN A PRODUCTIVE WORK STATUS, DOES NOT RENDER THE STATUTORY PROHIBITION INAPPLICABLE TO YOU. THEREFORE, YOU ARE PRECLUDED BY LAW FROM RECEIVING OVERTIME COMPENSATION FOR ANY PERIODS YOU ARE ENGAGED IN CLASSROOM INSTRUCTION (TRAINING) UNDER THE GOVERNMENT EMPLOYEES TRAINING ACT, UNLESS AN EXCEPTION TO THE PROVISIONS OF SECTION 10 IS ESTABLISHED BY THE UNITED STATES CIVIL SERVICE COMMISSION.