B-174330, NOV 19, 1971

B-174330, NOV 19, 1971

CIVILIAN EMPLOYEE - PREMIUM PAY DECISION DENYING CLAIM OF MR. LAWRENCE P. O'BRIEN FOR PREMIUM COMPENSATION FOR DUTY IN EXCESS OF 40 HOURS PER WEEK BASED ON PROVISIONS OF SUBSECTION 5545(C)(1) OF TITLE 5, U.S.C., AS EMPLOYEE FAILED TO MEET THE REQUIRED CONDITIONS OF 550.143 OF TITLE 5, U.S.C.

TO MR. LAWRENCE P. O'BRIEN:

THIS WILL REFER TO YOUR LETTER OF SEPTEMBER 28, 1971, AND ENCLOSURES, REQUESTING RECONSIDERATION OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED AUGUST 31, 1971, DENYING YOUR CLAIM FOR PREMIUM COMPENSATION FOR DUTY IN EXCESS OF 40 HOURS PER WEEK BASED UPON THE PROVISIONS OF SUBSECTION 5545(C)(1) OF TITLE 5, UNITED STATES CODE.

A REVIEW OF THE RECORD SHOWS THAT YOU WERE HIRED AS FIRE CHIEF FOR THE U.S. NAVY HEADQUARTERS SUPPORT ACTIVITY, TAIPEI, ON NOVEMBER 29, 1968. WAS ANTICIPATED THAT, BEGINNING ON OR ABOUT JANUARY 1969, YOUR TOUR WOULD "CONSIST OF FOUR EIGHT HOUR DAYS & ONE TWENTY FOUR HOUR (PLATOON LEADER) SHIFT" AS STATED IN A MESSAGE FROM THE COGNIZANT CIVILIAN PERSONNEL OFFICER TO THE NAVY OVERSEAS EMPLOYMENT OFFICE DATED OCTOBER 11, 1968. HOWEVER, A LETTER DATED MARCH 21, 1969, FROM THE SAME CIVILIAN PERSONNEL OFFICER STATES THAT THE JOB FOR WHICH YOU WERE HIRED FAILED TO DEVELOP DUE TO A LACK OF FUNDING AND A PERSONNEL CEILING WHICH PRECLUDED THE EMPLOYMENT OF FIREFIGHTERS, CONSTRUCTION OF A FIRE STATION, AND ACQUISITION OF FIREFIGHTING EQUIPMENT. THAT LETTER SPECIFICALLY REFERS TO THE FACT THAT BECAUSE THE PROJECTED PLANS FAILED TO MATERIALIZE YOU WERE UNHAPPY OVER FAILURE TO RECEIVE THE ANTICIPATED PREMIUM PAY. BECAUSE OF THIS IT WAS AGREED TO RELEASE YOU FROM YOUR TRANSPORTATION AGREEMENT.

THE CIVIL SERVICE REGULATIONS GOVERNING ADMINISTRATION OF PREMIUM PAY ON AN ANNUAL BASIS FOR REGULARLY SCHEDULED OVERTIME ARE STATUTORY REGULATIONS AND PROVIDE AS FOLLOWS AT SUBSECTION 550.143 OF TITLE 5, CODE OF FEDERAL REGULATIONS:

"SEC 550.143 BASES FOR DETERMINING POSITIONS FOR WHICH PREMIUM PAY UNDER SEC 550.141 IS AUTHORIZED.

"(A) THE REQUIREMENT FOR THE TYPE OF POSITION REFERRED TO IN SEC 550.141 THAT AN EMPLOYEE REGULARLY REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION MUST MEET ALL THE FOLLOWING CONDITIONS:

"(1) THE REQUIREMENT MUST BE DEFINITE AND THE EMPLOYEE MUST BE OFFICIALLY ORDERED TO REMAIN AT HIS STATION. THE EMPLOYEE'S REMAINING AT HIS STATION MUST NOT BE MERELY VOLUNTARY, DESIRABLE, OR A RESULT OF GEOGRAPHIC ISOLATION, OR SOLELY BECAUSE THE EMPLOYEE LIVES ON THE GROUNDS.

"(2) THE HOURS DURING WHICH THE REQUIREMENT IS OPERATIVE MUST BE INCLUDED IN THE EMPLOYEE'S TOUR OF DUTY. THIS TOUR OF DUTY MUST BE ESTABLISHED ON A REGULARLY RECURRING BASIS OVER A SUBSTANTIAL PERIOD OF TIME, GENERALLY AT LEAST A FEW MONTHS. THE REQUIREMENT MUST NOT BE OCCASIONAL, IRREGULAR, OR FOR A BRIEF PERIOD.

"(3) THE REQUIREMENT MUST BE ASSOCIATED WITH THE REGULARLY ASSIGNED DUTIES OF THE EMPLOYEE'S JOB, EITHER AS A CONTINUATION OF HIS REGULAR WORK WHICH INCLUDES STANDBY TIME, OR AS A REQUIREMENT TO STAND BY AT HIS POST TO PERFORM HIS REGULARLY ASSIGNED DUTIES IF THE NECESSITY ARISES."

NOTHING IN THE RECORD SUGGESTS THAT ANY OF THESE CONDITIONS WERE MET WITH RESPECT TO YOUR EMPLOYMENT IN TAIPEI. ON THE CONTRARY, THE ADMINISTRATIVE REPORT IS TO THE EFFECT THAT THERE WAS NO AUTHORIZATION OR REQUIREMENT FOR THE ESTABLISHMENT OF A 56-HOUR TOUR OF DUTY AND THAT YOU DID NOT WORK A SCHEDULE FOR WHICH PREMIUM PAY WAS AUTHORIZED.

WE FIND NOTHING IN YOUR LETTER OF SEPTEMBER 28, 1971, AND ITS ENCLOSURES TO REFUTE THE ADMINISTRATIVE REPORT. ACCORDINGLY, THE SETTLEMENT OF OUR CLAIMS DIVISION IS HEREBY AFFIRMED.

IN ACCORDANCE WITH YOUR REQUEST, WE ARE RETURNING THE PAPERS ENCLOSED WITH YOUR LETTER.