B-168381, DEC. 29, 1969

B-168381, DEC. 29, 1969

COMPENSATION--NIGHT WORK--REASSIGNMENT--LOST PAY CLAIM WHEN NIGHT SHIFT EMPLOYEE WAS REASSIGNED TO DAY SHIFT DUE TO CHANGE IN WORKLOAD BUT PRIMARILY AT HIS REQUEST, HE IS NOT ENTITLED TO NIGHT SHIFT DIFFERENTIAL PAY CLAIMED ON BASIS THAT CHANGE OF WORK SHIFT CONSTITUTED REDUCTION IN FORCE BUT SINCE LOSS OF DIFFERENTIALS IS CONSIDERED PAY ADJUSTMENT RATHER THAN REDUCTION IN PAY (PAY MEANING BASIC PAY AND NOT EXTRA PAY FOR SPECIAL DUTIES, INCLUDING NIGHT WORK, OVERTIME, ETC.) AND REASSIGNMENT IS MADE DURING REORGANIZATION TO POSITON IN SAME COMPETITIVE LEVEL, SIMILAR IN DUTIES AND RESPONSIBILITIES, SUCH REASSIGNMENT IS NEITHER REDUCTION-IN-FORCE ACTION NOR ADVERSE ACTION, APPLICABLE ONLY WHEN THERE IS RELEASE FROM COMPETITIVE LEVEL. OFFICERS AND EMPLOYEES--HOURS OF WORK- ADMINISTRATIVE DETERMINATION CONCERNING PICATINNY ARSENAL EMPLOYEE'S CLAIM FOR NIGHT SHIFT DIFFERENTIAL PAY AND ADDITIONAL SUNDAY AND HOLIDAY PAY, WHILE GAO HAS AUTHORITY TO DETERMINE PAY MATTERS IN DISPUTE BETWEEN EMPLOYEES AND AGENCIES OF GOVERNMENT, WHETHER CHANGE IN EMPLOYEE'S WORK SHIFT CONSTITUTED EITHER ADVERSE ACTION, ERRONEOUS REDUCTION IN FORCE OR REORGANIZATION, IS MATTER FOR DETERMINATION BY AGENCY OR BY DECISION OF CIVIL SERVICE COMMISSION UPON TIMELY APPEAL FROM ADMINISTRATIVE DETERMINATION.

TO MR. HAROLD C. SUYDAM:

YOUR LETTER OF OCTOBER 27, 1969, WITH ENCLOSURES, REQUESTS THAT WE RECONSIDER OUR SETTLEMENT CERTIFICATE DATED OCTOBER 14, 1969, WHICH DISALLOWED YOUR CLAIM FOR NIGHT SHIFT DIFFERENTIAL PAY AND ADDITIONAL SUNDAY AND HOLIDAY PAY BASED THEREON.

YOU INDICATE THAT SUCH AMOUNTS WERE NOT PAID TO YOU DURING THE PERIOD FROM FEBRUARY 8, 1965, THE DATE YOU WERE REASSIGNED FROM A NIGHT SHIFT TO A DAY SHIFT, TO THE DATE YOU SAY YOU WERE "PLACED BACK IN THE POSITION SAME SHIFT AND ALL." THE LATTER DATE IS NOT SHOWN. PRESUMABLY YOUR STATEMENT MEANS THAT YOU WERE REASSIGNED TO A NIGHT SHIFT SOME TIME AFTER APRIL 3, 1968, THE DATE THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW RENDERED ITS DECISION REGARDING THE ERRONEOUS ADMINISTRATIVE ACTION WHICH HAD DEMOTED YOU FROM WB-6502-8 TO WB-6502-3 ON SEPTEMBER 17, 1967.

THE SETTLEMENT OF OCTOBER 14, 1969, ADVISED YOU OF SECTION 3 OF THE BACK PAY ACT OF 1966, 5 U.S.C. 5596, AND OF THE INSTRUCTIONS IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 752-1, SUBCHAPTER S2-2, WHEREIN PARAGRAPH E (2) CONCERNING ADVERSE REDUCTION IN PAY SAYS THAT PAY MEANS BASIC PAY AND DOES NOT ENCOMPASS EXTRA OR ADDITIONAL PAYMENT FOR SPECIAL DUTY SUCH AS NIGHT WORK, OVERTIME, HAZARDOUS DUTY, OR HOLIDAY WORK; THAT LOSS OF THESE DIFFERENTIALS IS CONSIDERED TO BE A PAY ADJUSTMENT RATHER THAN A REDUCTION IN PAY. HOWEVER, PARAGRAPH D (4) THEREOF POINTS OUT THAT REASSIGNMENTS MADE DURING A REORGANIZATION REPRESENT A SPECIAL SITUATION; THAT IF THE REASSIGNMENT IS TO A POSITION IN THE SAME COMPETITIVE LEVEL, IT IS NEITHER A REDUCTION-IN-FORCE ACTION NOR AN ADVERSE ACTION WHICH APPLIES ONLY WHEN THERE IS A RELEASE FROM A COMPETITIVE LEVEL, AND WHEN POSITIONS WITHIN A PROPERLY CONSTRUCTED COMPETITIVE LEVEL ARE SO SIMILAR IN DUTIES AND RESPONSIBILITIES THAT INTERCHANGE OF PERSONNEL IS FEASIBLE THEY ARE, THEREFORE, NECESSARILY OF THE SAME RANK IN THE ORGANIZATION.

IN THOSE RESPECTS YOU ASSERT THAT THE CHANGE OF YOUR WORK SHIFT RESULTED ENTIRELY FROM A CHANGE IN THE WORKLOAD FACTORS AND, HENCE, CLEARLY SHOULD BE CONSIDERED AS HAVING BEEN BECAUSE OF A REDUCTION IN FORCE AS THE NUMBER OF EMPLOYEES ASSIGNED TO DRYHOUSE ATTENDANT DUTY WAS REDUCED ON FEBRUARY 8, 1965. ALSO, YOU CONTEND THAT IN THE PROCESS THERE WERE ADMINISTRATIVE VIOLATIONS OF THE PICATINNY ARSENAL REGULATIONS NO. 690-321 RELATING TO DETAILS OF EMPLOYEES, AND THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATION CPR R3 RELATING TO RETENTION PREFERENCE OF VETERANS.

THE ADMINISTRATIVE REPORT IN THAT REGARD, DATED NOVEMBER 30, 1965, IS IN PART AS FOLLOWS:

"B. MR. SUYDAM WAS NOT ASSIGNED PERMANENTLY TO DAY SHIFT BECAUSE OF HIS INJURY RELATED CONDITION. MR. SUYDAM IS A MUNITIONS OPERATOR. DAY SHIFT WORK AND NIGHT SHIFT WORK ON THIS JOB REQUIRE EQUAL PHYSICAL ABILITIES. LISTED BELOW ARE CIRCUMSTANCES CONCERNING SUBJECT CASE:

"(1) INJURY WAS SUSTAINED ON 19 NOV 60.

"(2) FROM DATE OF INJURY UNTIL FEB 65 EMPLOYEE WAS ASSIGNED AS A MUNITIONS OPERATOR. HE PERFORMED DUTIES AS A DRY HOUSE ATTENDANT. THESE DUTIES WERE ACCOMPLISHED WITHIN EMPLOYEE'S PHYSICAL LIMITATION. THERE WERE NO OTHER POSITIONS WITHIN THIS DIVISION TO WHICH THE EMPLOYEE COULD BE ASSIGNED WITHOUT VIOLATING PHYSICAL LIMITATIONS.

"(3) IN FEB 65 WORKLOAD FACTORS REQUIRED THIS DIVISION TO REDUCE ITS DRYHOUSE ATTENDANTS FROM 7 TO 4. DIVISION MANAGEMENT REVIEWED THE WORK AND PERSONNEL RECORDS OF THE SEVEN EMPLOYEES ASSIGNED. SELECTION OF FOUR MOST QUALIFIED PERSONNEL WAS MADE. MR. SUYDAM WAS ONE OF THE EMPLOYEES WHO THUS BECAME EXCESS. AN ADDITIONAL CONSIDERATION WAS THE PREVIOUS VERBAL REQUEST OF MR. SUYDAM FOR DAY SHIFT ASSIGNMENT.

"(4) BECAUSE OF A LOW WORKLOAD IN PROPS & EXPLS DIV AND A HIGH WORKLOAD LEVEL IN LOADING DIVISION, ARRANGEMENTS WERE MADE TO PLACE MR. SUYDAM ON LOAN TO LOADING DIVISION. THE LOAN WAS EFFECTIVE ON 8 FEB 65. BECAUSE THE LOAN EXTENDED FOR OVER 30 DAYS DETAIL TO LOADING DIVISION WAS REQUIRED. THIS DIVISION INITIATED A PERSONNEL ACTION REQUESTING SUCH DETAIL.

"(5) MR. SUYDAM WAS ASSIGNED TO SEDENTARY DUTIES ON THE DAY SHIFT IN LOADING DIVISION.

"(6) AT THE PRESENT TIME THERE ARE NO POSITIONS IN PROPS AND EXPLS DIV TO WHICH EMPLOYEE COULD BE ASSIGNED. THE PHYSICAL LIMITATIONS OF HIS HOSPITAL CLASSIFICATION PREVENT SUCH ASSIGNMENT.

"2. THIS DIVISION HAS REVIEWED THE COMMENTS OF MR. SUYDAM CONTAINED IN BLOCKS 19 AND 20 OF FORM CA-4. FACTS PRESENTED ARE SUBSTANTIALLY CORRECT EXCEPT FOR THE STATEMENT 'THIS ACTION WAS A RESULT OF MY OCCUPATIONAL BACK INJURY.' MR. SUYDAM'S SUPERVISOR INFORMED THE EMPLOYEE THAT THE CHANGE FROM NIGHT SHIFT IN PROPS AND EXPLS DIV TO DAY SHIFT IN LOADING DIVISION WAS CAUSED BY CHANGE IN WORKLOAD. AN ADDITIONAL CONTRIBUTING CONSIDERATION WAS MR. SUYDAM'S REQUEST FOR DAY SHIFT ASSIGNMENT."

THUS, IT APPEARS THAT ONE OF THE MORE SUBSTANTIAL REASONS FOR YOUR LOSS OF THE PREMIUM PAY WAS YOUR OWN REQUEST OF CHANGE TO A DAY SHIFT ASSIGNMENT WHICH WAS EFFECTED BEGINNING ON FEBRUARY 8, 1965. HOWEVER THAT MAY BE, WE NOTE THAT IN YOUR CLAIM DATED DECEMBER 10, 1968, YOU SAY THAT THE CIVIL SERVICE COMMISSION HAS REFUSED TO GIVE YOU A HEARING ON THE MATTERS WHICH YOU MENTION. OUR OFFICE HAS AUTHORITY TO DETERMINE PAY MATTERS IN DISPUTE BETWEEN EMPLOYEES AND AGENCIES OF THE GOVERNMENT. HOWEVER, YOUR QUESTION OF THE CHANGE OF YOUR WORK SHIFT, WHETHER IT CONSTITUTED EITHER AN ADVERSE ACTION, AN ERRONEOUS REDUCTION IN FORCE OR REORGANIZATION, IS A MATTER FOR DETERMINATION BY THE AGENCY OR BY DECISION OF THE CIVIL SERVICE COMMISSION UPON TIMELY APPEAL FROM AN ADMINISTRATIVE DETERMINATION.

IN THE CIRCUMSTANCES AND CONSIDERING THE REGULATORY INSTRUCTIONS CONTAINED IN THE ABOVE-CITED SUPPLEMENT 752-1, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.