B-165465, DEC. 24, 1968

B-165465, DEC. 24, 1968

TO MESSRS. DONALD M. MURTHA AND HERBERT S. THATCHER:

THIS REFERS TO YOUR LETTER OF OCTOBER 10, 1968, WRITTEN IN BEHALF OF MR. LEONARD TURKENKOPF AND 14 OTHER EMPLOYEES OF THE POST OFFICE DEPARTMENT, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENTS OF OCTOBER 8, 1968, DISALLOWING THEIR CLAIMS.

THE CLAIMS WERE DISALLOWED ON THE GROUND THAT SINCE THE EMPLOYEES WERE IN A LEAVE-WITHOUT-PAY STATUS FOR A NUMBER OF HOURS DURING THEIR SCHEDULED MONDAY THROUGH FRIDAY WORKWEEK, THEY WOULD NOT BE ENTITLED TO BE COMPENSATED AT THE OVERTIME RATE FOR SERVICE RENDERED UNTIL THEY HAD COMPLETED THE NUMBER OF HOURS IN THEIR REGULAR WORK SCHEDULE.

THE RECORD SHOWS THAT THE EMPLOYEES INVOLVED WERE ANNUAL RATE REGULAR EMPLOYEES WHO HAD A SCHEDULED MONDAY THROUGH FRIDAY WORKWEEK. THEIR SCHEDULED OFF DAYS WERE SATURDAY AND SUNDAY. EACH OF THE EMPLOYEES INVOLVED WAS SCHEDULED TO WORK ON ONE OR MORE OF THEIR SCHEDULED OFF DAYS ON SATURDAY AND SUNDAY, DECEMBER 10 AND 11 AND ON SATURDAY AND SUNDAY, DECEMBER 17 AND 18, 1966. IN EACH CASE THE EMPLOYEES WERE IN A LEAVE- WITHOUT-PAY STATUS FOR A NUMBER OF HOURS DURING THEIR SCHEDULED MONDAY THROUGH FRIDAY WORKWEEK. THE DEPARTMENT PAID THEM AT STRAIGHT RATES FOR THE NUMBER OF HOURS THEY WORKED ON SATURDAY OR SUNDAY EQUAL TO THE NUMBER OF HOURS THEY WERE IN A LEAVE WITHOUT-PAY STATUS DURING MONDAY THROUGH FRIDAY.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF OVERTIME COMPENSATION TO THE CLASS OF EMPLOYEES INVOLVED IS CONTAINED IN 39 U.S.C. 3573, AS AMENDED BY PUBLIC LAW 89-301, WHICH READS IN PART AS FOLLOWS:

"/A) IN EMERGENCIES OR IF THE NEEDS OF THE SERVICE REQUIRE, THE POSTMASTER GENERAL MAY REQUIRE EMPLOYEES TO PERFORM OVERTIME WORK OR TO WORK ON HOLIDAYS. OVERTIME WORK IS ANY WORK OFFICIALLY ORDERED OR APPROVED WHICH IS PERFORMED BY---

"/1) AN ANNUAL RATE REGULAR EMPLOYEE IN EXCESS OF HIS REGULAR WORK SCHEDULE,"

THE POST OFFICE DEPARTMENT -- WHICH AGENCY WE UNDERSTAND SPONSORED THAT PART OF THE LEGISLATION PERTAINING TO OVERTIME AND HOLIDAY PAY PRACTICES FOR POSTAL EMPLOYEES -- COMMENTED AS FOLLOWS IN ITS LETTER DATED MAY 25, 1965, APPEARING IN HOUSE REPORT NO. 792, ACCOMPANYING H.R. 10281, WHICH WAS ENACTED AS PUBLIC LAW 89-301:

"THE PROPOSED LEGISLATION IS TO GRANT THE POSTMASTER GENERAL THE AUTHORITY TO PAY FOR OVERTIME WORK AT PREMIUM RATES TO RANK AND FILE EMPLOYEES (REGULARS AS WELL AS SUBSTITUTES) WHEN THE SPECIFIED CONDITIONS ARE MET AS WELL AS TO CERTAIN SUPERVISORY PERSONNEL. THE KEYSTONE TO FEDERAL PREMIUM PAY PRACTICES IS FIRST THE 40-HOUR WORKWEEK, AND SECOND, WORK IN EXCESS OF 8 HOURS IN 1 DAY. THE LEGISLATION WHICH HAS BEEN DEVELOPED FOLLOWS THESE PRECEPTS BY PRESCRIBING PREMIUM PAY FOR THOSE CATEGORIES OF EMPLOYEES (1) WHO WORK IN EXCESS OF THEIR SCHEDULE TO THE EXTENT A SCHEDULE OF 8 HOURS A DAY OR 40 HOURS A WEEK CAN BE PRESCRIBED IN ADVANCE, OR (2) AS A MINIMUM FOR ALL CATEGORIES, PREMIUM PAY FOR WORK PERFORMED IN EXCESS OF 40 HOURS IN 1 WEEK. * * *"

ALSO, IN THE LETTER OF JUNE 28, 1965, APPEARING IN HOUSE REPORT NO. 792, THE POST OFFICE DEPARTMENT COMMENTED THAT:

"* * * AT FIRST IT WOULD APPEAR THAT SINCE WE RECOMMENDED A CHANGE IN LAW UNDER WHICH REGULARS WOULD BE PAID AT TIME AND ONE-HALF FOR WORK IN EXCESS OF 8 HOURS IN 1 DAY AS WELL AS FOR WORK IN EXCESS OF 40 HOURS IN 1 WEEK THAT IT WOULD BE ONLY FAIR TO PROVIDE THE SAME BENEFIT TO SUBSTITUTES. ACTUALLY, SUBSTITUTES HAVE EQUITY WITH REGULARS UNDER OUR RECOMMENDED OVERTIME PLAN FOR SUBSTITUTES, I.E; AFTER 40 HOURS IN A WEEK. SINCE REGULARS ARE TO BE SCHEDULED FOR 5 DAYS A WEEK OF 8 HOURS EACH ANY OVERTIME THEY WORK INEVITABLY IS OVERTIME AFTER 40. * * *"

COMMENTS IN HOUSE REPORT NO. 792 LEAD US TO THE VIEW THAT POSTAL SERVICE EMPLOYEES MUST HAVE BEEN IN A WORK OR LEAVE-WITH-PAY STATUS FOR THE NUMBER OF HOURS INCLUDED IN THEIR REGULAR WORK SCHEDULE BEFORE THEY MAY BE COMPENSATED AT OVERTIME RATES FOR WORK PERFORMED OUTSIDE THEIR SCHEDULED HOURS.

THE INSTRUCTIONS OF THE POST OFFICE DEPARTMENT PERTAINING TO OVERTIME DURING THE PERIOD IN QUESTION WERE CONTAINED IN POSTAL BULLETIN NO. 20508, DATED DECEMBER 17, 1965, PROVIDED THAT "WORK PERFORMED ON THE NONSCHEDULED WORKDAY WILL BE USED TO LIQUIDATE ANY LWOP CHARGED DURING THE BASIC WORKWEEK, AND OVERTIME WILL BE EARNED ONLY AFTER THE LWOP IS LIQUIDATED.' CURRENT REGULATIONS ARE CONTAINED IN POSTAL MANUAL 755.

IN YOUR LETTER YOU REFER TO THE CASE OF UNITED STATES V GATES, 148 U.S. 134. IN THAT CASE THE COURT WAS INTERPRETING A STATUTE WHICH PROVIDED THAT IF ANY LETTER CARRIER IS EMPLOYED A GREATER NUMBER OF HOURS PER DAY THAN EIGHT, HE SHALL BE PAID EXTRA FOR SUCH SERVICE IN PROPORTION TO HIS ANNUAL SALARY. THE COURT HELD THAT THE CARRIER WAS ENTITLED TO EIGHT HOURS WORK AND TO HIS PAY IF WORK IS NOT FURNISHED TO HIM. FOR ANY EXCESS ON ANY ONE DAY, HE IS ENTITLED TO EXTRA PAY. THE COURT, HOWEVER, SAID SETOFF CAN BE MAINTAINED WHEN HE IS ABSENT FROM DUTY WITHOUT LEAVE. OTHER WORDS THE COURT IS MAINTAINING THAT, UNDER THE LAW BEFORE THEM, THE EMPLOYEE HAD TO BE IN A WORK STATUS, OR AVAILABLE FOR WORK, 8 HOURS DURING THE DAY BEFORE HE WOULD BE ENTITLED TO OVERTIME ON THAT PARTICULAR DAY. OUR INTERPRETATION OF 39 U.S.C. 3573 FOLLOWS THE HOLDING IN THAT CASE IN THAT A POSTAL SERVICE EMPLOYEE IS REQUIRED TO BE IN A PAY STATUS 40 HOURS IN A WORKWEEK BEFORE HE IS ENTITLED TO OVERTIME.

IT IS TRUE THAT AS TO ANNUAL RATE REGULAR EMPLOYEES THE OVERTIME PROVISIONS OF 39 U.S.C. 3573 REFER TO "ANY WORK" PERFORMED "IN EXCESS OF HIS REGULAR WORK SCHEDULE.' THE REFERENCE TO WORK SCHEDULE WOULD SEEM TO RESULT FROM THE REQUIREMENT OF 39 U.S.C. 3571 THAT THE POSTMASTER GENERAL SHALL, FOR SUCH EMPLOYEES, ESTABLISH WORK SCHEDULES IN ADVANCE CONSISTING OF FIVE 8-HOUR DAYS IN EACH WEEK. WE FIND NO INDICATION, HOWEVER, IN THE ACT OR ITS LEGISLATIVE HISTORY WHICH SUGGESTS A CONGRESSIONAL INTENT THAT AN EMPLOYEE BY HIS OWN REQUEST FOR AND THE TAKING OF LEAVE WITHOUT PAY DURING THE PERIOD OF HIS REGULAR WORK SCHEDULE CAN RECEIVE OVERTIME PAY FOR THE SERVICE WORKWEEK (12:01 A.M. SATURDAY TO 12 MIDNIGHT FRIDAY) WITHOUT HAVING BEEN IN A PAY STATUS FOR 40 HOURS OF THAT WEEK. WE SO HELD IN B 157963, DATED NOVEMBER 17, 1965 (COPY ENCLOSED).

IN VIEW OF THE FOREGOING THE PREVIOUS ACTIONS OF DISALLOWING THE CLAIMS TAKEN IN OUR SETTLEMENTS OF OCTOBER 8, 1968, ARE SUSTAINED.