B-173779, NOV 22, 1971

B-173779, NOV 22, 1971

CIVILIAN EMPLOYEE - WORKWEEK - DISPUTE OF FACT DECISION SUSTAINING PRIOR DENIAL OF A CLAIM FOR OVERTIME COMPENSATION ALLEGED TO BE DUE INCIDENT TO EMPLOYMENT WITH THE CORPS OF ENGINEERS, PHILADELPHIA DISTRICT, AS A WAGE BOARD EMPLOYEE ABOARD THE DREDGE "COMBER." SECTION 6101, TITLE 5, U.S.C., PROVIDES THE BASIC AUTHORITY FOR THE DETERMINATION OF THE ADMINISTRATIVE WORKWEEK BY THE EMPLOYING AGENCY, AS WAS DONE HERE. WHERE THERE IS A FACTUAL DISPUTE EXISTING BETWEEN THE PARTIES AS TO THE DETERMINATION OF THAT WORKWEEK, GAO MUST BASE ITS DETERMINATION ON THE FACTS AS REPORTED BY THE ADMINISTRATIVE AGENCY. ACCORDINGLY, THE CLAIM WAS PROPERLY DENIED.

TO MR. CHARLES N. GRAY:

THIS REFERS TO THE LETTER DATED JULY 26, 1971, FROM MR. JOHN M. FEARS, PRESIDENT, LOCAL 902, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES WHICH IN EFFECT REQUESTS RECONSIDERATION OF YOUR CLAIM FOR OVERTIME COMPENSATION ALLEGED TO BE DUE INCIDENT TO EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY, PHILADELPHIA DISTRICT, CORPS OF ENGINEERS, AS A WAGE BOARD EMPLOYEE ABOARD THE DREDGE "COMBER."

THE CLAIM IS BASED ON THE ALLEGATION THAT YOU AND CERTAIN OTHER WAGE BOARD EMPLOYEES ABOARD THE DREDGE "COMBER" WORKED 6 DAYS OR 7 DAYS IN ONE ADMINISTRATIVE WORKWEEK AND 4 OR 3 DAYS IN THE FOLLOWING ADMINISTRATIVE WORKWEEK, AND AS A RESULT YOU BELIEVE YOU ARE ENTITLED TO OVERTIME COMPENSATION FOR THOSE HOURS WORKED EXCEEDING 40 IN ONE ADMINISTRATIVE WORKWEEK. THIS BELIEF IS GROUNDED ON THE ASSUMPTION THAT THE ADMINISTRATIVE WORKWEEK FOR ALL INDIVIDUALS ON THE DREDGE IS SUNDAY THROUGH SATURDAY.

BY SETTLEMENT OF OUR CLAIMS DIVISION DATED APRIL 22, 1971, DISALLOWING YOUR CLAIM, YOU WERE INFORMED THAT THE RECORD SHOWED THAT THE CORPS OF ENGINEERS HAD STATED THAT SEPARATE ADMINISTRATIVE WORKWEEKS HAVE BEEN ESTABLISHED FOR INDIVIDUALS ABOARD THE "COMBER" PROVIDING FOR 40 HOURS OF WORK IN EACH WORKWEEK AND 80 HOURS IN EACH PAY PERIOD.

IN THE LETTER OF JULY 26, 1971, REQUESTING RECONSIDERATION OF THE CLAIM, IT IS AGAIN STATED THAT THE CORPS OF ENGINEERS DID NOT CHANGE THE ADMINISTRATIVE WORKWEEK, ONLY THE WORK SCHEDULES. IT IS ALSO STATED THAT THE ADMINISTRATIVE WORKWEEK IS SHOWN AS SUNDAY THROUGH SATURDAY. IT IS CLEAR THAT THE ADMINISTRATIVE OFFICE TAKES A POSITION CONTRARY TO YOURS. WE ARE NOT EQUIPPED TO RESOLVE THE FACTUAL DISPUTE EXISTING IN THE CIRCUMSTANCES. WE, THEREFORE, ARE REQUIRED TO BASE OUR DETERMINATION ON THE FACTS AS REPORTED BY THE CORPS OF ENGINEERS.

THE APPLICABLE PROVISIONS OF LAW, 5 U.S.C. 6101, ARE AS FOLLOWS:

"(A)(1) ***

"(2) THE HEAD OF EACH EXECUTIVE AGENCY, MILITARY DEPARTMENT, AND OF THE GOVERNMENT OF THE DISTRIC OF COLUMBIA SHALL -

"(A) ESTABLISH A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS FOR EACH FULL- TIME EMPLOYEE IN HIS ORGANIZATION; AND

"(B) REQUIRE THAT THE HOURS OF WORK WITHIN THAT WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN 6 OF ANY 7 CONSECUTIVE DAYS.

"(3) EXCEPT WHEN THE HEAD OF AN EXECUTIVE AGENCY, A MILITARY DEPARTMENT, OR OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA DETERMINES THAT HIS ORGANIZATION WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THAT COSTS WOULD BE SUBSTANTIALLY INCREASED, HE SHALL PROVIDE, WITH RESPECT TO EACH EMPLOYEE IN HIS ORGANIZATION, THAT -

"(A) ASSIGNMENTS TO TOURS OF DUTY ARE SCHEDULED IN ADVANCE OVER PERIODS OF NOT LESS THAN 1 WEEK;

"(B) THE BASIC 40-HOUR WORKWEEK IS SCHEDULED ON 5 DAYS, MONDAY THROUGH FRIDAY WHEN POSSIBLE, AND THE 2 DAYS OUTSIDE THE BASIC WORKWEEK ARE CONSECUTIVE;

"(C) THE WORKING HOURS IN EACH DAY IN THE BASIC WORKWEEK ARE THE SAME;

"(D) THE BASIC NONOVERTIME WORKDAY MAY NOT EXCEED 8 HOURS;

"(E) THE OCCURRENCE OF HOLIDAYS MAY NOT AFFECT THE DESIGNATION OF THE BASIC WORKWEEK; AND

"(F) BREAKS IN WORKING HOURS OF MORE THAN 1 HOUR MAY NOT BE SCHEDULED IN A BASIC WORKDAY."

THE FOREGOING PROVISIONS OF LAW WERE MADE APPLICABLE TO WAGE BOARD EMPLOYEES OF THE DEPARTMENT OF THE ARMY BY PARAGRAPH S1-5, BOOK 610, DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS.

AS WAS EXPLAINED IN THE SETTLEMENT BY THE CLAIMS DIVISION, THE PROVISIONS OF 5 U.S.C. 6101(A)(3) ARE FOR APPLICATION EXCEPT WHEN THE HEAD OF AN AGENCY DETERMINES THAT HIS ORGANIZATION WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THE COST WOULD BE SUBSTANTIALLY INCREASED BY APPLICATION OF THE PROVISIONS. WHEN IT IS ADMINISTRATIVELY DETERMINED THAT THE NEEDS OF THE SERVICE REQUIRE THAT AN EMPLOYEE PERFORM HIS 40 HOURS OF BASIC WORK DURING A PERIOD OTHER THAN MONDAY THROUGH FRIDAY IT IS PERMISSIBLE FOR THE EMPLOYING AGENCY TO PRESCRIBE THAT THE 40-HOUR TOUR OF DUTY WILL BE PERFORMED AT ANYTIME DURING A CONTINUOUS PERIOD OF 7 CONSECUTIVE CALENDAR DAYS. IN 42 COMP. GEN. 195 WE CONCLUDED THAT ANY 24- HOUR PERIOD MAY BE TREATED AS A DAY AND THAT ANY CONSECUTIVE 7-DAY PERIOD MAY BE TREATED AS A WEEK. ALSO, OVERTIME FOR WORK IN EXCESS OF 40 HOURS IS PAYABLE ONLY IF PERFORMED WITHIN A SINGLE WORKWEEK - 7 CONSECUTIVE CALENDAR DAYS. THE NUMBER OF 8-HOUR DAYS WORKED CONSECUTIVELY IS IMMATERIAL UNLESS MORE THAN 40 HOURS ARE WORKED WITHIN A SINGLE WORKWEEK. THUS THE ACTION TAKEN BY THE CORPS OF ENGINEERS IN ESTABLISHING SEPARATE ADMINISTRATIVE WORKWEEKS FOR INDIVIDUALS ON THE "COMBER" WAS WITHIN THE ADMINISTRATIVE AUTHORITY OF AGENCIES TO PRESCRIBE BASIC TOURS OF DUTY FOR WAGE BOARD EMPLOYEES.

ACCORDINGLY, SINCE IT HAS NOT BEEN SHOWN THAT MORE THAN 40 HOURS WERE WORKED IN ONE ADMINISTRATIVE WORKWEEK, THE ACTION BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM WAS CORRECT AND MUST BE SUSTAINED.