B-175957, JUL 27, 1972

B-175957, JUL 27, 1972

CIVILIAN EMPLOYEES - NIGHT DIFFERENTIAL - NONTEMPORARY DAY WORK ASSIGNMENTS DECISION REGARDING THE AUTHORITY OF THE BUREAU OF MINES TO PAY NIGHT DIFFERENTIAL FOR THE PERIOD PRIOR TO A REDUCTION IN FORCE, IN WHICH TEN EMPLOYEES OF THE DIVISION OF HELIUM WERE TRANSFERRED TO DAY WORK PENDING THEIR DISMISSAL. THE AUTHORITY FOR NIGHT PAY DIFFERENTIAL, FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1, SUBCHAPTER 58-4C, CLEARLY CONTEMPLATES PAYMENT OF THE DIFFERENTIAL ONLY FOR WORK ACTUALLY PERFORMED, WITH THE EXCEPTION OF THOSE SITUATIONS LISTED IN SUBPARAGRAPH (3) OF SUBCHAPTER 58-4C. IN THE PRESENT CASE, GAO MUST CONCLUDE THAT THE INTERPRETATION GIVEN THE PHRASE "TEMPORARY ASSIGNMENT" BY THE DIRECTOR IS A REASONABLE ONE. ACCORDINGLY, THE CLAIM MUST BE DENIED.

TO MR. RICHARD R. HITE:

WE REFER TO YOUR LETTER OF MAY 10, 1972, FORWARDING A MEMORANDUM FROM THE DIRECTOR, BUREAU OF MINES AND REQUESTING A DECISION REGARDING THE AUTHORITY OF THE BUREAU TO PAY NIGHT DIFFERENTIAL FOR THE PERIOD PRIOR TO A REDUCTION IN FORCE, IN WHICH TEN EMPLOYEES OF THE DIVISION OF HELIUM, WHO WE UNDERSTAND ARE WAGE BOARD EMPLOYEES, WERE TRANSFERRED TO DAY WORK.

THE MEMORANDUM FROM THE DIRECTOR, BUREAU OF MINES, STATES THAT BECAUSE OF A REDUCTION IN THE WORK REQUIREMENTS AT THE EXELL, TEXAS, HELIUM PLANT, THE EMPLOYEES INVOLVED WERE NO LONGER NEEDED FOR REGULARLY SCHEDULED SHIFT OPERATIONS. HOWEVER, THERE WAS A TEMPORARY NEED FOR THOSE EMPLOYEES TO PERFORM ROUTINE DAY WORK AND TO FILL ASSIGNMENTS ON AN AS NEEDED BASIS PENDING THEIR DISMISSAL THROUGH REDUCTION IN FORCE. CONSEQUENTLY, FROM SEPTEMBER 19, 1971, UNTIL NOVEMBER 28, 1971, THE EFFECTIVE DATE OF THE REDUCTIONS IN FORCE, THE EMPLOYEES WERE REASSIGNED TO DAY WORK, WHICH RESULTED IN THE LOSS TO EACH FOR THE PERIOD INVOLVED OF THE NIGHT DIFFERENTIAL HE WOULD HAVE EARNED HAD HE REMAINED ON THE NIGHT SHIFT.

THE AUTHORITY FOR NIGHT PAY DIFFERENTIAL (COORDINATED WAGE SYSTEM), FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1, SUBCHAPTER S8-4C, PROVIDES IN PART AS FOLLOWS:

"C. NIGHT SHIFT DIFFERENTIAL. EACH REGULAR WAGE SCHEDULE CONTAINS SEPARATELY STATED NIGHT SHIFT DIFFERENTIALS WHICH ARE PAID IN ADDITION TO AN EMPLOYEE'S SCHEDULED RATE OF PAY FOR WORK PERFORMED ON SECOND AND THIRD SHIFTS. THE AMOUNTS OF THE NIGHT SHIFT DIFFERENTIALS ARE FIXED ON THE BASIS OF THOSE PREVAILING IN THE LOCAL WAGE AREA, AND ARE STATED AS CENTS- AN-HOUR AMOUNTS, WHICH ARE APPLIED UNIFORMLY TO ALL WAGE EMPLOYEES PERFORMING WORK ON A SECOND OR ON A THIRD SHIFT."

THE ABOVE REGULATION CONTEMPLATES PAYMENT OF THE NIGHT DIFFERENTIAL ONLY FOR WORK ACTUALLY PERFORMED WITH THE EXCEPTION OF THE PARTICULAR CIRCUMSTANCES ENUMERATED IN SUBPARAGRAPH (3) OF SUBCHAPTER S8-4C; ONE OF WHICH PROVIDES AS FOLLOWS:

"TEMPORARY ASSIGNMENT TO DIFFERENT TOUR OF DUTY. (I) A WAGE EMPLOYEE REGULARLY ASSIGNED TO A NIGHT SHIFT SHALL CONTINUE TO RECEIVE HIS REGULAR NIGHT SHIFT DIFFERENTIAL DURING A TEMPORARY ASSIGNMENT TO THE DAY SHIFT OR TO ANOTHER NIGHT SHIFT HAVING A LOWER NIGHT DIFFERENTIAL, INCLUDING OVERTIME HOURS OF WORK. A WAGE EMPLOYEE REGULARLY ASSIGNED TO A NIGHT SHIFT WHO IS TEMPORARILY ASSIGNED TO ANOTHER NIGHT SHIFT WITH A HIGHER DIFFERENTIAL SHALL RECEIVE THE HIGHER DIFFERENTIAL FOR WORK PERFORMED ON THAT SHIFT, INCLUDING OVERTIME HOURS OF WORK. (II) A WAGE EMPLOYEE REGULARLY ASSIGNED TO A DAY SHIFT IS ENTITLED TO A NIGHT SHIFT DIFFERENTIAL FOR ANY PERIOD DURING WHICH HE IS TEMPORARILY ASSIGNED TO WORK A REGULAR SHIFT FOR WHICH A NIGHT SHIFT DIFFERENTIAL IS OTHERWISE PAYABLE, INCLUDING OVERTIME HOURS OF WORK."

WE PRESUME THAT THIS AUTHORITY IS SIMILAR TO ARTICLE II, SECTION I, PARAGRAPH K OF THE "LABOR AGREEMENT" REFERENCED IN THE GRIEVANCE REPORT DATED SEPTEMBER 15, 1971. THE MEMORANDUM FROM THE SUPERINTENDENT, EXELL HELIUM PLANT, TO THE CHAIRMAN OF THE GRIEVANCE COMMITTEE INDICATES THAT REASSIGNMENTS WERE NOT TEMPORARY. THIS DETERMINATION APPEARS TO BE IN ACCORDANCE WITH THE SENSE IN WHICH THE PHRASE "TEMPORARY ASSIGNMENT" IS USED IN SUBPARAGRAPH 3 QUOTED ABOVE. THE PHRASE COULD REASONABLY BE INTERPRETED IN THE CONTEXT OF THE REGULATION TO CONTEMPLATE SITUATIONS IN WHICH IT IS ANTICIPATED THAT, FOLLOWING ASSIGNMENT TO THE DAY SHIFT OR TO ANOTHER NIGHT SHIFT HAVING A LOWER NIGHT SHIFT DIFFERENTIAL, THE EMPLOYEE WILL BE RETURNED TO HIS ORIGINAL ASSIGNMENT. ALTHOUGH DIFFERENT CONSTRUCTION OF THE PHRASE "TEMPORARY ASSIGNMENT" IS NOT NECESSARILY PRECLUDED, THE DETERMINATION IN THIS REGARD APPEARS TO BE REASONABLE AND WE ARE THEREFORE NOT IN A POSITION TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY.

IN ADDITION TO THE FOREGOING WE HAVE ALSO EXAMINED THE POSSIBLE APPLICATION OF THE PROVISIONS OF 5 U.S.C. 5596 TO THE EFFECT THAT AN EMPLOYEE WHO IS FOUND BY APPROPRIATE AUTHORITY TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF HIS PAY, ALLOWANCES, OR DIFFERENTIALS, IS ENTITLED, UPON CORRECTION OF THE PERSONNEL ACTION, TO BACK PAY FOR THE PERIOD INVOLVED. IN ORDER FOR SUCH STATUTORY PROVISIONS TO BE APPLICABLE TO THE EMPLOYEES HERE INVOLVED THERE WOULD HAVE TO BE A FINDING BY PROPER AUTHORITY THAT THE CHANGE TO DAY WORK WAS AN UNJUSTIFIED PERSONNEL ACTION AND A CORRECTION MADE OF SUCH PERSONNEL ACTION.

THE IMPLEMENTING CIVIL SERVICE COMMISSION REGULATION, 5 CFR 550.803, PROVIDES IN PERTINENT PART AS FOLLOWS:

"(E) A PERSONNEL ACTION REFERRED TO IN SECTION 5596 OF TITLE 5, U.S.C. AND THIS SUBPART IS ANY ACTION BY AN AUTHORIZED OFFICIAL OF AN AGENCY WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR ANY PART OF THE PAY ALLOWANCES, OR DIFFERENTIALS OF AN EMPLOYEE AND INCLUDES, BUT IS NOT LIMITED TO, SEPARATIONS FOR ANY REASON (INCLUDING RETIREMENT), SUSPENSIONS, FURLOUGHS WITHOUT PAY, DEMOTIONS, REDUCTIONS IN PAY, AND PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION COVERED BY PART 752 OF THIS CHAPTER."

WE POINT OUT HOWEVER, THAT SUBCHAPTER S1-5 OF FEDERAL PERSONNEL MANUAL SUPPLEMENT 752-1 SPECIFICALLY PROVIDES THAT THE LOSS OF PREMIUM PAY FOR NIGHT WORK BY ASSIGNMENT TO THE DAY SHIFT IS NOT SUCH A REDUCTION IN PAY AS WILL CONSTITUTE AN ADVERSE ACTION. SUBSECTION (C) READS IN PART AS FOLLOWS:

"C. REDUCTIONS IN PAY NOT COVERED BY PART 752. THE FOLLOWING ARE EXAMPLES OF ACTIONS THAT ARE NOT REDUCTIONS IN PAY UNDER PART 752.

(4) LOSS OF PREMIUM PAY FOR NIGHT WORK. THE ASSIGNMENT OF AN EMPLOYEE FROM A NIGHT SHIFT TO THE SAME OR AN IDENTICAL POSITION ON THE DAY SHIFT AND THE ATTENDANT LOSS OF PREMIUM PAY FOR NIGHT WORK IS NOT A REDUCTION IN PAY COVERED BY PART 752 ***."

BECAUSE OF THE FOREGOING WE FIND NO BASIS FOR REIMBURSEMENT OF THE LOSS IN DIFFERENTIAL OCCASIONED BY ASSIGNMENT OF EMPLOYEES INVOLVED TO DAY WORK PRIOR TO THEIR SEPARATIONS BY REDUCTION IN FORCE.