B-145581, DECEMBER 26, 1962, 42 COMP. GEN. 326

B-145581, DECEMBER 26, 1962, 42 COMP. GEN. 326

COMPENSATION - NIGHT WORK - REGULARLY SCHEDULED NIGHT WORK - IMPOSSIBLE TO SCHEDULE. COMPENSATION - NIGHT WORK - REGULARLY SCHEDULED NIGHT WORK - DURATION OF FACILITY OPERATION. COMPENSATION - NIGHT WORK - CONSTRUCTIVE TIME OCCASIONAL UNSCHEDULED OVERTIME DUTY AFTER 6 P.M. BY ATOMIC ENERGY COMMISSION GUARDS IN CONNECTION WITH TESTS, LECTURES, AND EMERGENCY BUILDING PROTECTION WHICH CANNOT BE REGULARLY SCHEDULED BECAUSE OF THE IMPOSSIBILITY TO ANTICIPATE THE OVERTIME WORK IN ADVANCE DOES NOT CONSTITUTE "REGULARLY SCHEDULED WORK" WITHIN THE MEANING OF THE NIGHT DIFFERENTIAL STATUTE, SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 921, AS WORK TO CONSTITUTE REGULARLY SCHEDULED WORK MUST BE DULY AUTHORIZED IN ADVANCE AND MUST BE SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS; THEREFORE, THE GUARDS PERFORMING OCCASIONAL UNSCHEDULED NIGHT OVERTIME DUTY ARE NOT ENTITLED TO PAYMENT OF THE NIGHT DIFFERENTIAL AUTHORIZED UNDER 5 U.S.C. 921. WHERE ATOMIC ENERGY COMMISSION FACILITIES CONTINUE OCCASIONALLY AND WITHOUT ADVANCE NOTICE TO OPERATE BEYOND THE REGULARLY ESTABLISHED DUTY HOURS OF 7:30 A.M. TO 5:30 P.M., REQUIRING NIGHT OVERTIME GUARD SERVICE, NIGHT DIFFERENTIAL UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 921, PROVIDED FOR "REGULARLY SCHEDULED WORK" BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. MAY BE AUTHORIZED ONLY WHEN SUPPORTED BY AN ADMINISTRATIVE FINDING THAT AN INHERENT REQUIREMENT OF THE PARTICULAR POST ASSIGNMENT IS THAT THE GUARD REMAIN ON DUTY SO LONG AS THE FACILITY IS IN OPERATION, INCLUDING WHEN NECESSARY OVERTIME DUTY AFTER 6 P.M., AND THAT THE OVERTIME STATUS AFTER 6 P.M. FREQUENTLY RECURS FOR THE INDIVIDUAL GUARD, OTHERWISE, THE OVERTIME WORK IS NOT REGULARLY SCHEDULED AND IS NOT SUBJECT TO A NIGHT DIFFERENTIAL PAYMENT. THE MINIMUM OF 2-HOURS CALL-BACK OVERTIME AUTHORIZED BY 5 U.S.C. 912 (A) APPLIES SOLELY TO OVERTIME COMPENSATION AND THE CONSTRUCTIVE TIME AUTHORIZED HAS NO APPLICATION TO NIGHT DIFFERENTIAL PREMIUM PAY.

TO THE CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION, DECEMBER 26, 1962:

ON JULY 12, 1962, REFERENCE AFP-MLH, MRS. MARION L. HEUER, AUTHORIZED CERTIFYING OFFICER AT THE ALBUQUERQUE OPERATIONS OFFICE, REQUESTED OUR DECISION ON CERTAIN QUESTIONS CONCERNING PAYMENT OF NIGHT DIFFERENTIAL UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 921, TO MEMBERS OF THE GUARD FORCE AT LOS ALAMOS, NEW MEXICO, FOR OVERTIME DUTY AT NIGHT WHEN THE ADDITIONAL WORK REQUIREMENTS COULD NOT BE ANTICIPATED IN ADVANCE. ALSO, ON NOVEMBER 23 YOUR CONTROLLER SUBMITTED A REPORT ON THE MATTER IN RESPONSE TO OUR REQUEST OF AUGUST 15, 1962. UNDER THE CIRCUMSTANCES OF THIS CASE, WE ARE ADDRESSING OUR REPLY TO YOU RATHER THAN DIRECTLY TO THE CERTIFYING OFFICER.

SO FAR AS HERE MATERIAL, SECTION 301 (A) OF THE 1945 PAY ACT, AS AMENDED BY THE ACT OF SEPTEMBER 1, 1954 (PUBLIC LAW 763), 68 STAT. 1110, 5 U.S.C. 921 (A), PROVIDES FOR THE PAYMENT OF PREMIUM COMPENSATION (NIGHT DIFFERENTIAL) OF 10 PERCENT FOR ANY "REGULARLY SCHEDULED WORK" BETWEEN THE HOURS OF 6 P.M. AND 6 A.M.

THE SECURITY ACTIVITIES OF THE GUARDS INVOLVE SUCH MATTERS AS MANNING SECURITY STATIONS AND PATROLS, GUARDING PROPERTY AND ESCORTING OFFICIAL VISITORS WHO ARE NOT AUTHORIZED TO RECEIVE RESTRICTED INFORMATION. FOR ORGANIZATIONAL PURPOSES, THE GUARDS ARE DIVIDED INTO THREE PANIES,"A," "B," AND "C," WITH EACH COMPANY BEING RESPONSIBLE FOR ONE SHIFT. SOME 53 GUARD STATIONS HAVE BEEN ESTABLISHED AT VARIOUS TECHNICAL AREAS WHERE WORK IS PERFORMED BY THE LOS ALAMOS SCIENTIFIC LABORATORY. THE HOURS OF OPERATION AT THOSE STATIONS MAY VARY ACCORDING TO THE OPERATIONS OF THE LABORATORY. THIRTY-SIX OF THE STATIONS OPERATE 24 HOURS A DAY WITH 3 SHIFTS; 8 OPERATE ON DAY SHIFTS ONLY, DURING THE DAYTIME HOURS THE LABORATORY IS IN OPERATION; 13 OPERATE ON 2 SHIFTS (SWING AND GRAVEYARD) FROM 3 P.M. TO 7 A.M.; 3 OPERATE ON 2 SHIFTS (DAY AND SWING) FROM 7 A.M. TO 11 P.M.; AND 3 OPERATE AS NEEDED. THE NORMAL COMPLEMENT FOR EACH COMPANY IS THE NUMBER OF MEN REQUIRED TO MAN REGULARLY ESTABLISHED STATIONS OR POSTS DURING EACH SHIFT, INCLUDING A FACTOR OF MEN TO PERMIT NORMAL LEAVE TAKING AND ONE "EXTRA" MAN FOR EACH SHIFT TO OPERATE AS A RELIEF MAN TO TAKE CARE OF LIMITED EMERGENCY SITUATIONS.

THE CERTIFYING OFFICER SUMMARIZES THE NATURE OF THE ADDITIONAL DUTIES AND CIRCUMSTANCES UNDER WHICH THE NEED THEREFOR ARISES, AS FOLLOWS:

THE NEED FOR THE ADDITIONAL GUARDS ARISES WHEN, ON VERY LITTLE OR VIRTUALLY NO NOTICE AT ALL, A DISCRETE LABORATORY FACILITY IS REQUIRED BY THE IMPERATIVES OF RESEARCH BEING DONE, TO BE IN OPERATION BEYOND NORMAL OPERATING HOURS (8 A.M. TO 5 P.M.) AND MUST, THEREFORE, HAVE SECURITY SERVICES AFTER 6 P.M. THE NEED FOR THE ADDITIONAL GUARDS ALSO ARISES WHEN SPECIAL DEMANDS FOR VISITOR ESCORTS AND PROPERTY PROTECTION OCCUR. THE WORK PERFORMED BY THE ADDITIONAL GUARDS IS BY AND LARGE ONE TIME, SPECIAL DUTY WORK. IT IS SOMETIMES REQUIRED AT STATIONS THAT ARE NORMALLY NOT MANNED DURING THE NIGHT HOURS, AND, SOME SUCH WORK, ALTHOUGH PERFORMED WITHIN THE TECHNICAL AREA WHICH, AS A WHOLE, IS UNDER THE JURISDICTION OF THE GUARDS, IS PERFORMED AT PARTICULAR LOCATIONS IN THE TECHNICAL AREAS THAT ARE NOT MANNED AT ALL ON A REGULAR BASIS.

THE FOLLOWING "SITUATIONS" CONCERNING WHICH OUR DECISION IS REQUESTED ARE PRESENTED BY THE CERTIFYING OFFICER:

SITUATION NO. 1: OVERTIME OF 10.0 HOURS WAS PERFORMED AFTER 6 P.M. ON JUNE 12 AND 14, 1962, AT GUARD STATION 327. THIS STATION IS ESTABLISHED AT A SHOP BUILDING IN THE TECHNICAL AREA. IT HAS REGULARLY ESTABLISHED DUTY HOURS OF 7:30 A.M. TO 5:30 P.M. THE OVERTIME WAS REQUIRED BECAUSE CERTAIN LABORATORY OPERATIONS IN THE SHOP CONTINUED BEYOND 6 P.M. ON THE DATES INDICATED. THE REQUIREMENT THAT THE STATION OPERATE AFTER 6 P.M. OCCURRED ON 7 OTHER OCCASIONS DURING THE MONTH OF JUNE.

SITUATION NO. 2: OVERTIME OF .2 HOURS WAS PERFORMED AFTER 6 P.M. ON JUNE 16, 1962, AT GUARD STATION 235. THIS STATION IS ESTABLISHED AT A REMOTE SITE THAT IS MANNED ONLY DURING CHEMICAL EXPLOSIVE TESTS. THESE TESTS ARE FREQUENT, BUT ARE NOT REGULARLY SCHEDULED. WHEN THE TESTS ARE RUNNING, THE STATION IS REQUIRED TO BE MANNED. SUCH TESTS MAY BEGIN OR CONTINUE AFTER 6 P.M. THE REQUIREMENT THAT THE STATION OPERATE AFTER 6 P.M. OCCURRED ONCE DURING THE MONTH OF JUNE.

SITUATION NO. 3: OVERTIME OF 8.1 HOURS WAS PERFORMED AFTER 6 P.M. ON JUNE 14, 1962, AT THE ADMINISTRATION BUILDING IN TECHNICAL AREA 3. THE ADDITIONAL GUARDS WERE REQUIRED WHEN LECTURES WERE IN PROGRESS IN THE AUDITORIUM PORTION OF THE BUILDING. THERE IS A GUARD POST AT THE ENTRANCE TO THE BUILDING THAT IS MANNED 24 HOURS EACH DAY; HOWEVER, LECTURES GIVEN IN THE AUDITORIUM ARE SOMETIMES OPEN TO THE PUBLIC. DURING THESE LECTURES, EXTRA GUARDS ARE PLACED ON DUTY IN HALLS AND AT DOORS TO PREVENT ENTRY OF UNAUTHORIZED PERSONNEL INTO SENSITIVE AREAS. THE LECTURES ARE NOT REGULARLY SCHEDULED. THE REQUIREMENT THAT ADDITIONAL GUARDS BE ASSIGNED FOR DUTY AFTER 6 P.M. OCCURRED ONCE DURING THE MONTH OF JUNE.

SITUATION NO. 4: OVERTIME OF 11.2 HOURS WAS PERFORMED AFTER 6 P.M. ON JUNE 20, 1962 AT BUILDING NO. 1 IN TECHNICAL AREA 46. DUE TO CONSTRUCTION ACTIVITIES, A ROLL DOOR FOR THIS BUILDING COULD NOT BE LOCKED AND SEALED ON THE NIGHT OF JUNE 20. THIS CONDITION WAS REPORTED BY THE PATROL GUARD WHO STOOD BY UNTIL AN ADDITIONAL GUARD COULD BE CALLED OUT TO STAND DUTY AT THE UNLOCKED DOOR.

THE BASIC QUESTION TO BE DECIDED IS, OF COURSE, WHETHER THE ADDITIONAL OVERTIME WORK AT NIGHT OCCURRING IN THE SITUATIONS DESCRIBED ABOVE CONSTITUTES "REGULARLY SCHEDULED WORK" WITHIN THE MEANING OF THE SUBJECT NIGHT DIFFERENTIAL STATUTE. GENERALLY SPEAKING, THE WORK, TO CONSTITUTE ,REGULARLY SCHEDULED WORK," MUST BE DULY AUTHORIZED IN ADVANCE AND MUST BE SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. SEE 40 COMP. GEN. 397, 399 (CITING 39 ID. 73 AND MODIFYING 36 ID. 657). CLEARLY, ON THE FACTS PRESENTED THE OVERTIME WORK INVOLVED IN SITUATION NOS. 2, 3, AND 4, STATED ABOVE DOES NOT MEET THE FOREGOING REQUIREMENTS, AND, THEREFORE, THE NIGHT DIFFERENTIAL IS NOT PAYABLE FOR SUCH WORK.

CONCERNING SITUATION NO. 1, IT MIGHT BE INFERRED FROM THE STATEMENT OF THAT SITUATION THAT THE DUTY REQUIREMENTS OF THE INDIVIDUAL GUARD AT THE FACILITY INVOLVED ARE ANALOGOUS TO THE DUTY REQUIREMENTS OF THE INDIVIDUAL GUARD AT THE FACILITY INVOLVED ARE ANALOGOUS TO THE DUTY REQUIREMENTS FOR SECURITY COURIERS OF YOUR COMMISSION INVOLVED IN OUR DECISION OF JULY 6, 1961 (B-145581), 41 COMP. GEN. 8, IN THAT AN INHERENT REQUIREMENT OF THE PARTICULAR POST ASSIGNMENT IS THAT HE REMAIN ON DUTY SO LONG AS THE FACILITY IS IN OPERATION, INCLUDING, WHEN NECESSARY, OVERTIME DUTY AFTER 6 P.M., AND THAT THE REQUIREMENT FOR REMAINING ON DUTY IN AN OVERTIME STATUS AFTER 6 P.M. FREQUENTLY RECURS FOR THE INDIVIDUAL GUARD. IF SUCH INFERENCE BE SUPPORTED BY AN ADMINISTRATIVE FINDING TO THAT EFFECT, NIGHT DIFFERENTIAL IS PAYABLE. OTHERWISE, THE OVERTIME WORK MUST BE REGARDED AS BEING NOT REGULARLY SCHEDULED AND NOT SUBJECT TO NIGHT DIFFERENTIAL PAYMENT.

IN ANY EVENT, NONE OF THE SITUATIONS HERE IN QUESTION IS COMPARABLE WITH THE FACTUAL SITUATION CONSIDERED IN 34 COMP. GEN. 621, IN THAT THE ADDITIONAL GUARDS IN THIS CASE WERE NOT ASSIGNED TO PERFORM DUTIES NORMALLY PERFORMED BY THE REGULAR NIGHT FORCE. THE FACT THAT OTHER GUARDS IN THE SAME GENERAL AREA WERE ASSIGNED REGULAR TOURS OF DUTY AT NIGHT IS NOT MATERIAL. CF. 36 COMP. GEN. 657, 658.

THREE RELATED SITUATIONS ARE SET FORTH IN YOUR CONTROLLER'S LETTER OF NOVEMBER 23 WITH PERTINENT QUESTIONS AS FOLLOWS:

1. WHEN SECURITY REQUIREMENTS IN THE CIRCUMSTANCES STATED MAKE IT NECESSARY TO SUPPLEMENT A GUARD SHIFT ON DUTY WITH GUARDS WHO WOULD OTHERWISE BE OFF-DUTY TO HANDLE OCCASIONAL ADDITIONAL SECURITY TASKS, IS NIGHT DIFFERENTIAL PAYABLE FOR THAT PART OF SUCH WORK (WHETHER IT BE ONLY A FEW MINUTES, A FEW HOURS, OR EIGHT OR MORE HOURS IN DURATION) PERFORMED BETWEEN 6 P.M. AND 6 A.M.)

2. SECTION 912 (A), VOLUME 5, OF THE U.S.C. ANNOTATED PROVIDES:

"* * * ANY UNSCHEDULED OVERTIME WORK PERFORMED BY ANY OFFICER OR EMPLOYEE ON A DAY WHEN NO WORK WAS SCHEDULED FOR HIM, OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT, SHALL BE CONSIDERED TO BE AT LEAST TWO HOURS IN DURATION.'

IF YOUR ANSWER TO QUESTION ONE IS "YES," IS WORK OF LESS THAN TWO HOURS IN DURATION TO BE GIVEN CONSTRUCTIVE CREDIT OF TWO HOURS FOR NIGHT DIFFERENTIAL PURPOSE? IF SO, HOW IS THE NIGHT DIFFERENTIAL TO BE APPLIED?

3. IF YOU CONCLUDE THAT SUCH TIME MUST BE GIVEN CONSTRUCTIVE CREDIT OF TWO HOURS, AND IF SUCH ADDITIONAL WORK SPANS HOURS IN TWO SEPARATE CALENDAR DAYS (11 P.M. TO 1 A.M.), THE SECOND OF WHICH IS A DAY WHEN NO WORK IS SCHEDULED FOR THE GUARD, MUST TIME PERFORMED WITHIN THAT SECOND DAY BE CONSIDERED SEPARATELY AND GIVEN TWO HOURS OF CONSTRUCTIVE CREDIT? IF SO, HOW IS NIGHT DIFFERENTIAL TO BE APPLIED?

CONCERNING SITUATION 1, WE BELIEVE THE ANSWERS TO THE CERTIFYING OFFICER'S QUESTIONS, ABOVE, ADEQUATELY SET FORTH THE APPLICABLE GUIDELINES.

THE PROVISIONS OF LAW REQUIRING CALL-BACK OVERTIME FOR A MINIMUM OF TWO HOURS IS, IN OUR OPINION, INTENDED TO APPLY SOLELY TO OVERTIME COMPENSATION AND HAS NO APPLICATION TO NIGHT DIFFERENTIAL PREMIUM PAY. THEREFORE, THE FIRST QUESTION IN SITUATION 2 IS ANSWERED IN THE NEGATIVE, RENDERING A REPLY UNNECESSARY TO THE SECOND QUESTION.

IN VIEW OF THE NEGATIVE ANSWER TO THE FIRST QUESTION IN SITUATION 2, NO ANSWER IS REQUIRED TO THE QUESTIONS PRESENTED IN SITUATION 3.

CONCERNING THE CERTIFYING OFFICER'S INQUIRY AS TO PAYMENTS ALREADY MADE, WE MUST ADVISE THAT ANY PAYMENTS OF NIGHT DIFFERENTIAL CONTRARY TO THE CONCLUSIONS STATED HEREIN SHOULD BE RECOVERED.