B-164953, OCT. 14, 1968

B-164953, OCT. 14, 1968

TO MR. C. E. SMITH:

YOUR REQUEST OF JULY 9, 1968, REFERENCE CRA/JAB, WITH RELATED PAPERS, INCLUDING A VOUCHER IN THE AMOUNT OF $196.16, SUBMITTED THROUGH THE COMPTROLLER OF THE NAVY, CONCERNS THE PAYMENT OF OVERTIME ON THE SAME DAY ON WHICH ANNUAL LEAVE WAS APPROVED UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET OUT. IN ADDITION YOU ASK THE FOLLOWING RELATED QUESTIONS:

"A. MAY AN EMPLOYEE BE CONSIDERED EXCUSED FROM DUTY FOR A LIMITED PERIOD OF TIME WITHOUT LOSS OF PAY OR LEAVE FROM THE DAYS AND SHIFT HOURS HE HAD BEEN SCHEDULED TO WORK WHEN WITHOUT PROPER ADVANCE NOTICE HE IS DIRECTED TO REPORT ON DIFFERENT DAYS OR DIFFERENT SHIFT HOURS?

"B. IF QUESTION A. IS NOT ANSWERED IN THE AFFIRMATIVE, WOULD IT BE PERMISSIBLE TO ESTABLISH A 50 PERCENT PENALTY OR PREMIUM PAY WHICH WOULD BE PAID FOR THE DAYS AND SHIFT HOURS AN UNGRADED EMPLOYEE WAS SCHEDULED TO WORK WHEN THE EMPLOYEE IS DIRECTED TO WORK DIFFERENT DAYS AND SHIFT HOURS UNDER THE IDENTICAL CIRCUMSTANCES? " THE RECORD FURNISHED BY YOU SHOWS THE FOLLOWING INFORMATION:

"A. EMPLOYEE NO. 1. EMPLOYEE WAS ASSIGNED TO THE 8:00 A.M. TO 4:00 P.M. SHIFT FOR THE 80 HOUR PAY PERIOD ENDING 13 JANUARY, 1968. EMPLOYEE'S SHIFT WAS CHANGED TO 4:00 P.M. TO MIDNIGHT ON 11 AND 12 JANUARY, 1968. EMPLOYEE'S ATTENDANCE CARD INDICATES NO CHARGE TO LEAVE NOR PAYMENT OF OVERTIME ON 11 JANUARY, 1968. AN EIGHT HOUR ANNUAL LEAVE CHARGE (8:00 A.M. TO 4:00 P.M.) AND EIGHT HOURS OVERTIME (4:00 P.M. TO MIDNIGHT) IS INDICATED ON ATTENDANCE CARD FOR 12 JANUARY, 1968.

"B. EMPLOYEE NO. 2. EMPLOYEE WAS ASSIGNED TO THE 8:00 A.M. TO 4:00 P.M. SHIFT FOR THE 80 HOUR PAY PERIOD ENDING 13 JANUARY, 1968. EMPLOYEE'S SHIFT WAS CHANGED TO MIDNIGHT TO 8:00 A.M. ON 4, 5 AND 9 JANUARY, 1968 AND TO 4:00 P.M. TO MIDNIGHT ON 11 AND 12 JANUARY, 1968. EMPLOYEE'S ATTENDANCE CARD INDICATES NO CHARGE TO LEAVE NOR PAYMENT OF OVERTIME ON 4 JANUARY, 1968. THIRTY-TWO HOURS ANNUAL LEAVE CHARGE (8:00 A.M. TO 4:00 P.M.) AND THIRTY-TWO HOURS OVERTIME IS INDICATED FOR 5 AND 9 JANUARY, 1968 (MIDNIGHT TO 8:00 A.M.) AND 11 AND 12 JANUARY, 1968 (4:00 P.M. TO MIDNIGHT).'

THE VOUCHER SUBMITTED REPRESENTS THE CLAIMS OF BYRON W. CAHOONE FOR $37.76 AND EMILE DAIGNAULT FOR $158.40 (TOTALING $196.16), WAGE BOARD EMPLOYEES, FOR OVERTIME COMPENSATION FOR THE DAYS ON WHICH ANNUAL LEAVE WAS APPROVED.

THE REGULATIONS OF THE DEPARTMENT OF THE NAVY (NCPI 610.2-2) PROVIDE THAT EXCEPT UNDER SPECIAL CIRCUMSTANCES THE DAYS AND THE SHIFT HOURS OF AN EMPLOYEE'S BASIC WORKWEEK SHALL NOT BE CHANGED WITHOUT NOTICE TO THE EMPLOYEE AT LEAST 3 CALENDAR DAYS BEFORE THE FIRST ADMINISTRATIVE WORKWEEK AFFECTED BY THE CHANGE. WHILE THE RECORD INDICATES THAT THE CIRCUMSTANCES GIVING RISE TO THE CHANGE OF HOURS HERE INVOLVED DO NOT FALL WITHIN ANY OF THE SPECIAL CIRCUMSTANCES ENUMERATED AS BEING EXCEPTED FROM THE ADVANCE NOTICE REQUIREMENT WE MUST ASSUME THAT THE REGULATIONS CONTEMPLATED THERE WOULD BE OTHER CIRCUMSTANCES OF AN EMERGENCY NATURE WARRANTING A VALID CHANGE IN AN EMPLOYEE'S HOURS OF DUTY WITHOUT THE NECESSITY OF GIVING THE EMPLOYEE THE NOTICE GENERALLY REQUIRED.

5 U.S.C. 5544 (A), APPLICABLE TO WAGE BOARD EMPLOYEES, READS, IN PERTINENT PART, AS FOLLOWS:

"AN EMPLOYEE WHOSE BASIC RATE OF PAY IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY A WAGE BOARD * * * IS ENTITLED TO OVERTIME PAY FOR OVERTIME WORK IN EXCESS OF 8 HOURS A DAY * * *.'

OUR DECISION B-149986, OCTOBER 9, 1962 (42 COMP. GEN. 195), QUESTIONS 1 (B) AND (C) CONCERNED AN EMPLOYEE WITH A 10-HOUR TOUR OF DUTY WHO TOOK ANNUAL LEAVE DURING THE PRESCRIBED TOUR OF DUTY, FIRST DURING THE BEGINNING OF THE TOUR AND SECONDLY THE LAST 2 HOURS THEREOF. WE CONCLUDED THAT BY TAKING ANNUAL LEAVE DURING ANY PART OF THE FIRST 8 HOURS OF THE PRESCRIBED TOUR AND WORKING THE LAST 2 HOURS THEREOF THE EMPLOYEE WAS ENTITLED TO BE PAID OVERTIME UNDER THE ABOVE QUOTED PROVISION. HOWEVER, BY TAKING ANNUAL LEAVE DURING THE LAST 2 HOURS OF THE PRESCRIBED 10-HOUR TOUR OF DUTY WE CONCLUDED THE EMPLOYEE DEFEATED HIS RIGHT TO OVERTIME COMPENSATION SINCE HE DID NOT PERFORM OVERTIME WORK IN EXCESS OF 8 HOURS A DAY AS REQUIRED THEREBY.

THE APPLICATION OF THE ABOVE DECISION WOULD DEPEND ON WHETHER OR NOT THE CHANGES IN THE HOURS OF WORK OF THE EMPLOYEES CONSTITUTED A CHANGE IN THEIR DAILY TOURS OF DUTY. IF NO VALID CHANGES IN SUCH TOURS OCCURRED IT WOULD BE PROPER TO CHARGE ANNUAL LEAVE FOR THE REGULAR TOUR OF DUTY ON A PARTICULAR DAY AND REGARD THE HOURS ACTUALLY WORKED AS OVERTIME. CONVERSELY, IF VALID CHANGES IN THE TOURS OF DUTY OCCURRED THEN THE CHARGING OF ANNUAL LEAVE AND THE PAYMENT OF OVERTIME COMPENSATION IS NOT FOR CONSIDERATION.

IN THE ABSENCE OF A PROVISION IN THE REGULATIONS SPECIFICALLY PRECLUDING CHANGES IN THE TOURS OF DUTY OF EMPLOYEES UNDER THE CIRCUMSTANCES WHICH PROMPTED SUCH ACTION IN THIS PARTICULAR CASE OUR VIEW IS THAT THE CHANGES IN THE TOURS OF DUTY ARE TO BE REGARDED AS VALID AND NO CHARGING OF ANNUAL LEAVE FOR THE PURPOSE OF PAYING OVERTIME COMPENSATION IS AUTHORIZED. THE VOUCHER FOR $196.16 WILL BE RETAINED IN THE FILES OF THIS OFFICE.

CONCERNING THE EXCUSING OF AN EMPLOYEE WITHOUT CHARGE TO LEAVE FOR ANY PART OF THE HOURS HE WAS REGULARLY SCHEDULED TO WORK BECAUSE OF BEING REQUIRED TO WORK A DIFFERENT SHIFT (WHICH WOULD THEN PERMIT PAYMENT OF OVERTIME COMPENSATION) WE DO NOT BELIEVE ANY AUTHORITY EXISTS THEREFOR. CF. 5 CFR 610.301-305. AS TO THE PAYMENT OF PENALTY OR PREMIUM PAY TO EMPLOYEES UNDER THE CIRCUMSTANCES RELATED IT WOULD APPEAR THAT SUCH WOULD BE POSSIBLE ONLY IF A DETERMINATION TO THAT EFFECT BE MADE IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5341.