B-189040, JUL 7, 1978

B-189040, JUL 7, 1978

DIGEST: HOPPER DREDGE EMPLOYEE OF THE ARMY CORPS OF ENGINEERS WHOSE TOUR OF DUTY REQUIRES HIM TO WORK TWO 8-HOUR WORK SHIFTS EACH COMPRISED OF TWO 4-HOUR PARTS SEPARATED BY 8 HOURS OF NONDUTY WITH ONE SHIFT BEGINNING ON SATURDAY AND ENDING ON SUNDAY AND THE OTHER BEGINNING ON SUNDAY AND ENDING ON MONDAY IS ENTITLED TO 16 HOURS OF SUNDAY PREMIUM PAY. SPLIT SHIFT MAY BE AUTHORIZED BY 5 U.S.C. 6101(A)(3)(F) AND 5 U.S.C. 5546 (1976) DOES NOT LIMIT PREMIUM PAY TO 8 HOURS, BUT TO 8 HOURS ON EACH SHIFT.

FRANCIS M. MURRO - PAYMENT OF SUNDAY PREMIUM PAY:

THIS IS IN RESPONSE TO A REQUEST SUBMITTED BY E. FRANKLIN SIMMS, JR., DISBURSING OFFICER, JACKSONVILLE DISTRICT, ARMY CORPS OF ENGINEERS, FOR A DECISION WHETHER MR. FRANCIS M. MURRO, A CREW MEMBER ASSIGNED TO A LOCAL HOPPER DREDGE, IS ENTITLED TO SUNDAY PREMIUM PAY FOR TWO 8-HOUR SHIFTS. EACH SHIFT IS SPLIT INTO TWO EQUAL 4-HOUR PARTS SEPARATED BY 8 HOURS OF NONDUTY. ALSO, EACH SHIFT SPANS TWO CALENDAR DAYS AS A 24-HOUR ADMINISTRATIVE DAY (0800-0800) WAS LOCALLY ESTABLISHED TO DETERMINE WHEN SHIFTS BEGIN AND END. MR. MURRO'S SATURDAY TOUR OF DUTY INCLUDES THE PERIODS 1600-2000 SATURDAY AND 0400 0800 SUNDAY. HIS SUNDAY TOUR INCLUDES THE PERIODS 1600-2000 SUNDAY AND 0400-0800 MONDAY.

SECTION 5546(A) OF TITLE 5, U.S.C. (1976), STATES AS FOLLOWS:

"AN EMPLOYEE WHO PERFORMS WORK DURING A REGULARLY SCHEDULED 8-HOUR PERIOD OF SERVICE WHICH IS NOT OVERTIME WORK AS DEFINED BY SECTION 5542(A) OF THIS TITLE A PART OF WHICH IS PERFORMED ON SUNDAY IS ENTITLED TO PAY FOR THE ENTIRE PERIOD OF SERVICE AT THE RATE OF HIS BASIC PAY, PLUS PREMIUM PAY AT A RATE EQUAL TO 25 PERCENT OF HIS RATE OF BASIC PAY."

THE LAW CITED ABOVE STEMS FROM SECTION 405(C) OF THE FEDERAL SALARY AND FRINGE BENEFITS ACT OF 1966, 80 STAT. 288, 297, 298, WHICH AMENDED TITLE III OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 BY ADDING THE FOLLOWING SECTION:

"COMPENSATION FOR SUNDAY WORK

"SEC. 302. ANY REGULARLY SCHEDULED EIGHT-HOUR PERIOD OF SERVICE WHICH IS NOT OVERTIME WORK AS DEFINED IN SECTION 201 OF THIS ACT ANY PART OF WHICH IS PERFORMED WITHIN THE PERIOD COMMENCING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY SHALL BE COMPENSATED FOR THE ENTIRE PERIOD OF SERVICE AT THE RATE OF BASIC COMPENSATION OF THE OFFICER OR EMPLOYEE PERFORMING SUCH WORK PLUS PREMIUM COMPENSATION AT A RATE EQUAL TO 25 PER CENTUM OF HIS RATE OF BASIC COMPENSATION." SUBSEQUENTLY SECTION 302 WAS CODIFIED AS 5 U.S.C. 5546(A) BY SECTION 1(29) OF PUBLIC LAW 90-83, SEPTEMBER 11, 1967, 81 STAT. 201, WITHOUT SUBSTANTIVE CHANGE. THUS, THE ADMINISTRATIVE WORKDAY CANNOT OPERATE TO CHANGE THE ESTABLISHED DEFINITION OF "SUNDAY." THEREFORE, IN DECIDING WHETHER THE EMPLOYEE IS ENTITLED TO 16 HOURS OF SUNDAY PREMIUM PAY, OUR OFFICE IS COMPELLED TO LOOK AT THE SHIFTS IN THEIR RELATIONSHIP TO CALENDAR DAYS AND NOT IN THEIR RELATIONSHIP TO ADMINISTRATIVE DAYS. SEE B-168592, FEBRUARY 25, 1970, AND CASES CITED THEREIN.

UNDER 5 U.S.C. 5546(A) (1976), AN EMPLOYEE WHO PERFORMS WORK DURING A REGULARLY SCHEDULED 8-HOUR PERIOD OF DUTY WHICH IS NOT OVERTIME, A PART OF WHICH IS PERFORMED ON SUNDAY, IS ENTITLED TO PREMIUM PAY FOR SUNDAY WORK FOR THE ENTIRE PERIOD OF SERVICE. ALSO, FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1-10A(3)(II), PROVIDES THAT A FULL -TIME EMPLOYEE WHO WORKS AN 8-HOUR NIGHT SHIFT BEGINNING SATURDAY AND ENDING SUNDAY AND AN 8-HOUR NIGHT SHIFT BEGINNING SUNDAY AND AN 8-HOUR NIGHT SHIFT BEGINNING SUNDAY AND ENDING MONDAY IS ENTITLED TO SUNDAY PREMIUM PAY FOR 16 HOURS. THEREFORE, THE ISSUE IS WHETHER IT IS PERMISSIBLE TO REACH BACKWARD OVER MIDNIGHT SATURDAY TO PICKUP 4 HOURS WORKED BETWEEN 4 P.M. - 8 P.M., SATURDAY AND REACH FORWARD OVER SUNDAY MIDNIGHT TO PICKUP THE HOURS WORKED 4 A.M. - 8 A.M., MONDAY. WE FIND NOTHING IN THE LANGUAGE OF THE STATUTE, THE LEGISLATIVE HISTORY, THE CASE LAW, OR THE REGULATIONS SPECIFICALLY CONCERNED WITH THIS SITUATION. THEREFORE, WE HAVE CONSIDERED THE STATUTES RELATING TO HOURS OF WORK OF FEDERAL EMPLOYEES.

SECTION 6101(A)(2)(A) OF TITLE 5, U.S.C. (1976), GRANTS TO THE HEAD OF EACH AGENCY THE RIGHT TO ESTABLISH A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS FOR EACH FULL-TIME EMPLOYEE IN HIS ORGANIZATION. WHEN ADMINISTRATIVELY FEASIBLE THE SUNDAY THROUGH SATURDAY WEEK AND THE MIDNIGHT TO MIDNIGHT DAY SHOULD BE USED. SECTION 6101(A)(3) OF TITLE 5, U.S.C. (1976), PROVIDES, IN GENERAL, FOR THE ESTABLISHMENT OF A WORKWEEK FROM MONDAY TO FRIDAY CONSISTING OF 5 BASIC 8-HOUR DAYS CONTAINING NO MORE THAN A 1-HOUR BREAK. HOWEVER, THE STATUTE ALSO PROVIDES THAT THE HEAD OF AN AGENCY MAY ESTABLISH TOURS OF DUTY OTHER THAN THE GENERAL TOUR PRESCRIBED WHEN HE DETERMINES THAT HIS ORGANIZATION WOULD BE SERIOUSLY HANDICAPPED IN FULFILLING ITS FUNCTIONS BY THE ESTABLISHMENT OF THE GENERAL TOUR. THUS, WE HAVE CONCLUDED THAT A 24-HOUR PERIOD MAY BE TREATED AS A "DAY" AND A CONSECUTIVE 7-DAY PERIOD MAY BE TREATED AS A "WEEK" FOR SUCH EMPLOYEES.

AS NOTED ABOVE SPLIT SHIFTS ARE USUALLY PROHIBITED (5 U.S.C. 6101(A) (3)(F) (1976)) EXCEPT WHEN AGENCY WORK WOULD BE SERIOUSLY HANDICAPPED. ASSUME THAT IN THE PRESENT CASE THE HEAD OF THE AGENCY UNDER THE DISCRETIONARY AUTHORITY GRANTED HIM, HAS DETERMINED THAT A SPLIT SHIFT IS NECESSARY TO MEET THE AGENCY'S NEEDS. THUS, WHILE THERE IS A SPLIT SHIFT, THE FACT REMAINS THAT 8 HOURS ARE WORKED ON EACH OF THE SHIFTS INVOLVED. SECTION 5546(A) OF TITLE 5, U.S.C. DOES NOT LIMIT SUNDAY PREMIUM PAY TO 8 HOURS, BUT TO 8 HOURS ON EACH SHIFT WHICH IS NOT OVERTIME. MOREOVER, AS STATED ABOVE, UNDER CIRCUMSTANCES SUCH AS THESE THE CIVIL SERVICE REGULATIONS PERMIT PAYMENT OF 16 HOURS. CF. B-175275.16, MAY 13, 1975.

ACCORDINGLY, MR. MURRO IS ENTITLED TO 16 HOURS OF SUNDAY PREMIUM PAY IF HIS CLAIM IS OTHERWISE PROPER.