B-161775, AUG. 10, 1967

B-161775, AUG. 10, 1967

COMPENSATION - OVERTIME - NIGHT DIFFERENTIAL DECISION TO CERTIFYING OFFICER OF A.E.C. RE CLAIMS FOR NIGHT DIFFERENTIAL FOR OVERTIME WORK PERFORMED BY 6 INSPECTORS AT SOUTH ALBURQUERQUE, NEW MEXICO, FOR PERIOD NOVEMBER 1959 TO DECEMBER 1966. INSPECTORS WHO REGULARLY WORKED THE EVENING SHIFT AND WERE ASSIGNED SATURDAY AND SUNDAY OVERTIME WORK MAY ON BASIS OF EXAMINATION OF TIME AND ATTENDANCE RECORDS OF DAILY TIME BOOKS HAVE OVERTIME WORK REGARDED AS REGULARLY PERFORMED FOR PAYMENT OF NIGHT DIFFERENTIAL SINCE NEED IS SHOWN BY CONTRACTOR'S REQUEST AND AGENCY AUTHORIZATION IN ADVANCE. THEREFORE ADMINISTRATIVE SETTLEMENT IS AUTHORIZED. HOWEVER, OVERTIME FOR ISOLATED WEEKS MAY NOT BE INCLUDED FOR PAYMENT. ALSO FOR PERIOD 1956-1959 WHEN WRITTEN RECORDS ARE NOT AVAILABLE PAYMENT MUST BE DISALLOWED.

TO MISS LUCILLE EIDSON, AUTHORIZED CERTIFYING OFFICER, ALBUQUERQUE OPERATIONS OFFICE, UNITED STATES ATOMIC ENERGY COMMISSION:

THIS IS IN REPLY TO YOUR LETTER OF MAY 17, 1967, TRANSMITTED HERE BY THE CONTROLLER, UNITED STATES ATOMIC ENERGY COMMISSION, UNDER DATE JUNE 9, 1967, IN WHICH YOU ENCLOSE VOUCHER FOR $219.80 REPRESENTING SIX CLAIMS FOR NIGHT DIFFERENTIAL FOR OVERTIME WORK PERFORMED ON SATURDAYS AND SUNDAYS BY SIX INSPECTORS IN THE SOUTH ALBUQUERQUE, NEW MEXICO, AREA OFFICE FOR THE PERIOD NOVEMBER 1, 1959, THROUGH DECEMBER 17, 1966.

THE INSPECTORS IN QUESTION REGULARLY WORKED THE EVENING SHIFT 3:30 P.M. TO 12:00 P.M. INSPECTING FINISHED PRODUCTS OF ACF INDUSTRIES, A PRODUCTION CONTRACTOR FOR ACF. THE NIGHT DIFFERENTIAL WAS REPORTED AND PAID FOR THE MONDAY THROUGH FRIDAY BASIC WORKWEEK BUT WAS NOT REPORTED OR PAID FOR SATURDAY AND SUNDAY WORK.

YOU STATE THAT THE REGULARITY OF THE SATURDAY AND SUNDAY OVERTIME WORK WAS REVEALED BY EXAMINATION OF THE TIME AND ATTENDANCE REPORTS FOR THE PERIOD JUNE 25, 1961, THROUGH DECEMBER 17, 1966, WHICH REFLECTED THE OVERTIME, IN CONJUNCTION WITH THE PRIOR OVERTIME REQUESTS WHICH SHOWED THE CLOCK HOURS OF THE OVERTIME ASSIGNMENT. FOR THE PERIOD FROM NOVEMBER 1959 TO JUNE 24, 1961, TIME AND ATTENDANCE REPORTS ARE NOT AVAILABLE BUT THE DAILY DUTY ASSIGNMENTS OF PERSONNEL ON THE EVENING SHIFT ARE CONTAINED IN "TIME BOOKS.' NO RECORDS ARE AVAILABLE TO SUPPORT CLAIMS FOR NIGHT DIFFERENTIAL FOR OVERTIME ON SATURDAYS AND SUNDAYS WORK PRIOR TO NOVEMBER 1, 1959.

YOUR LETTER INDICATES THAT IT WAS STANDARD PRACTICE TO ASSIGN THE SATURDAY AND SUNDAY OVERTIME WORK TO EMPLOYEES ON THE EVENING SHIFT UNTIL DECEMBER 1962.

ENCLOSED WITH YOUR LETTER IS A WORKSHEET "EXHIBIT A" WHICH INDICATES THE SATURDAYS AND SUNDAYS ON WHICH OVERTIME WAS WORKED ON THE EVENING SHIFT DURING THE PERIOD 1959 - 1966. YOU STATE THAT ON THE BASIS OF THE OVERTIME REFLECTED IN EXHIBIT A THE SIX EMPLOYEES ARE ENTITLED TO $219.80 IN NIGHT DIFFERENTIAL PAY AS "REGULARLY SCHEDULED WORK" AND THAT FOR 38 EMPLOYEES COMPUTED IN THE SAME MANNER THE NIGHT DIFFERENTIAL TOTALS APPROXIMATELY $1,171.14.

YOU POINT OUT THAT:

"THE NIGHT DIFFERENTIAL WAS NOT ORIGINALLY REPORTED ON SATURDAY AND SUNDAY OVERTIME BECAUSE THE WORK WAS NOT CONSIDERED -REGULARLY SCHEDULED- IN THAT IT WAS NOT SCHEDULED ONE WEEK IN ADVANCE, THE SCHEDULING BEING -AT THE REQUEST OF ACF INDUSTRIES, AND THESE REQUESTS WERE MADE WHEN THE NEED FOR THE INSPECTION BECAME APPARENT, USUALLY A DAY OR TWO BEFORE THE WEEKEND.-"

SECTION 301/A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, BY THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1110, NOW 5 U.S.C. 5545, PROVIDES FOR PREMIUM PAY OF 10 PERCENT FOR "REGULARLY SCHEDULED WORK" BETWEEN 6:00 P.M. AND 6:00 A.M.

OUR DECISION IN 40 COMP. GEN. 397 REFLECTED THE VIEW THAT NIGHT WORK MUST BE REGULARLY AUTHORIZED IN ADVANCE AND MUST BE SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS.

IN UNITED STATES V. AVILES ET AL., 151 CT. CL. 1, THE COURT OF CLAIMS HELD THAT IT WAS NOT NECESSARY FOR RECURRING OVERTIME AFTER 6:00 P.M. TO BE SCHEDULED IN ORDER FOR IT TO BE COMPENSABLE AS NIGHT WORK IF THE OVERTIME "CONTINUES FOR A PERIOD OF TIME SUFFICIENTLY LONG ENOUGH FOR THE INDIVIDUAL TO SAY THAT IT IS HIS USUAL OR CUSTOMARY EMPLOYMENT.' THE FINDINGS OF FACT IN THAT CASE SHOWED THAT OVERTIME WAS WORKED ON THE MAJORITY OF DAYS IN QUESTION. UNITED STATES V. AVILES, SUPRA, PAGE 18.

IN APPLYING THE FOREGOING RULE IT WAS HELD IN 41 COMP. GEN. 8 (QUOTING FROM THE SYLLABUS):

"SECURITY COURIERS OF THE ATOMIC ENERGY COMMISSION WHO ARE ASSIGNED TO SECURITY SHIPMENT DUTIES WHICH NECESSITATE NIGHT WORK THAT RECURS REGULARLY DURING A SHIPMENT, ALTHOUGH NOT ACCORDING TO A FIXED HOURS OF- WORK PATTERN, MAY HAVE THE TIME WORKED CONSIDERED AS A PART OF THE REGULARLY SCHEDULED TOURS OF DUTY AND BE PAID NIGHT DIFFERENTIAL UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, FOR ANY TIME WORKED BETWEEN 6:00 P.M. AND 6:00 A.M. IN EITHER THE BASIC WORKWEEK HOURS OR IN THE OVERTIME HOURS.'

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

CONSISTENT WITH THE FOREGOING OUR OFFICE WOULD NOT OBJECT TO ADMINISTRATIVE SETTLEMENT OF THE CLAIMS FOR NIGHT DIFFERENTIAL OF THE SIX INSPECTORS IN QUESTION FORWARDED BY YOUR LETTERS OF APRIL 10, 19 AND 28, 1967, FOR HOURS OF OVERTIME ACTUALLY WORKED ON SATURDAYS AND SUNDAYS ON THE EVENING SHIFT FOR THE PERIODS OUTLINED ABOVE.

THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT UPON ADJUSTMENT IN ACCORDANCE WITH THE FOREGOING.

THE CLAIMS OF OTHER INSPECTORS FOR NIGHT DIFFERENTIAL MAY BE ADMINISTRATIVELY SETTLED ALONG THE LINES SUGGESTED ABOVE. AS YOU SAY, THE CLAIMS FOR NIGHT DIFFERENTIAL FOR THE PERIOD 1956 - 1959 WHICH ARE NOT SUBSTANTIATED BY WRITTEN RECORDS ARE FOR DISALLOWANCE.