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B-163549, SEPT. 6, 1968

B-163549 Sep 06, 1968
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OUR UNDERSTANDING IS THAT THE IMMIGRATION AND NATURALIZATION SERVICE. "/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. THE 2 DAYS OUTSIDE THE BASIC WORKWEEK ARE CONSECUTIVE. "/C) THE WORKING HOURS IN EACH DAY IN THE BASIC WORKWEEK ARE THE SAME. ISSUED IN IMPLEMENTATION OF THE QUOTED STATUTE ARE TO THE SAME EFFECT. EXCEPT WHEN IT IS ADMINISTRATIVELY DETERMINED THAT SUCH COMPLIANCE WOULD SERIOUSLY HANDICAP THE DEPARTMENT OR AGENCY IN CARRYING OUT ITS FUNCTIONS OR THAT ITS COSTS WOULD BE SUBSTANTIALLY INCREASED. IT HAS BEEN OFFICIALLY REPORTED BY THE IMMIGRATION AND NATURALIZATION SERVICE THAT WORK SCHEDULES ARE PREPARED IN ADVANCE SO AS TO UTILIZE THE AVAILABLE MANPOWER TO FULLY MAN A STATION BUT AT THE SAME TIME TO REQUIRE ONLY 8 HOURS OF WORK FROM EACH EMPLOYEE IN A "DAY" .

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B-163549, SEPT. 6, 1968

TO MR. PATRICK BYRNE:

YOUR LETTERS OF MAY 9 AND 20, JULY 20 AND AUGUST 19, 1968, ASK THAT WE FURNISH YOU A DEFINITION OF THE WORD "DAY" AS IT APPLIES TO YOU AS AN IMMIGRATION AND NATURALIZATION INSPECTOR AND YOU IDENTIFY THEREIN CERTAIN DATES ON WHICH YOU CLAIM ENTITLEMENT TO OVERTIME COMPENSATION UNDER THE PROVISIONS OF 5 U.S.C.A. 5542 WHICH RELATE TO THE HOURS "IN EXCESS OF 8 HOURS IN A DAY.'

OUR UNDERSTANDING IS THAT THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE, OPERATES TO THE EXTENT POSSIBLE UNDER THE CONCEPT THAT A "DAY" MEANS A CALENDAR DAY CONSTITUTING THE PERIOD FROM 12:01 A.M. TO MIDNIGHT.

5 U.S.C.A. 6101 (A) READS, IN PERTINENT PART, AS FOLLOWS:

"/3) EXCEPT WHEN THE HEAD OF AN EXECUTIVE AGENCY * * * 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 REGULATIONS CONTAINED IN FEDERAL PERSONAL MANUAL SUPPLEMENT 990-1, PART 610, ENTITLED HOURS OF DUTY, PAGES III-163-165, INCLUSIVE, ISSUED IN IMPLEMENTATION OF THE QUOTED STATUTE ARE TO THE SAME EFFECT.

THE FOREGOING PROVISIONS AND REGULATIONS REQUIRE OFFICIAL COMPLIANCE WITH EACH OF THE CONDITIONS SET OUT IN 5 U.S.C.A. 6101 (A) (3), QUOTED ABOVE, EXCEPT WHEN IT IS ADMINISTRATIVELY DETERMINED THAT SUCH COMPLIANCE WOULD SERIOUSLY HANDICAP THE DEPARTMENT OR AGENCY IN CARRYING OUT ITS FUNCTIONS OR THAT ITS COSTS WOULD BE SUBSTANTIALLY INCREASED.

IT HAS BEEN OFFICIALLY REPORTED BY THE IMMIGRATION AND NATURALIZATION SERVICE THAT WORK SCHEDULES ARE PREPARED IN ADVANCE SO AS TO UTILIZE THE AVAILABLE MANPOWER TO FULLY MAN A STATION BUT AT THE SAME TIME TO REQUIRE ONLY 8 HOURS OF WORK FROM EACH EMPLOYEE IN A "DAY" . THE INFORMATION CONCERNING SUCH SCHEDULING FURNISHED BY YOU APPEARS TO CONFIRM SUCH FACT. FURTHER, THE ADMINISTRATIVE OFFICE ADVISES THAT IN ORDER TO AVOID SERIOUSLY HANDICAPPING THE CARRYING OUT OF ITS FUNCTIONS AND INCREASING COSTS SUBSTANTIALLY, IT IS NECESSARY IN A MINIMUM NUMBER OF INSTANCES TO SCHEDULE IN ADVANCE -- NOT HOLDING OVER AS YOU CONTEND IN YOUR MAY 9 LETTER -- WHAT IS KNOWN AS SPLIT SHIFTS.

WE HAVE EXAMINED THE SCHEDULES TRANSMITTED WITH YOUR LETTER OF MAY 9, AND HAVE CAREFULLY NOTED THE DAYS ON WHICH YOU FEEL YOU ARE ENTITLED TO OVERTIME COMPENSATION. HOWEVER ON NONE OF THE DAYS INVOLVED IN THE OVERTIME CLAIMED DID YOU WORK MORE THAN 8 HOURS ON A CALENDAR DAY BASIS. THUS UNDER THE CONCEPT CUSTOMARILY APPLIED IN THE SERVICE, NAMELY, THAT "DAY" MEANS "CALENDAR DAY" YOU WOULD NOT BE ENTITLED TO OVERTIME COMPENSATION DESPITE THE FACT THAT BY REASON OF YOUR WORKING SPLIT SHIFTS YOU MAY HAVE REMAINED CONTINUOUSLY ON DUTY FOR MORE THAN 8 HOURS.

THE INFORMATION YOU FURNISH SHOWS THAT ON SATURDAY, NOVEMBER 11, 1967 -- A HOLIDAY -- YOU WORKED FROM 4 P.M. TO MIDNIGHT AS SCHEDULED. ON SUNDAY, NOVEMBER 12, 1967, YOUR SCHEDULE WAS MIDNIGHT TO 1 A.M., 1 HOUR, AND FROM 5 P.M. TO MIDNIGHT, 7 HOURS, FOR A TOTAL OF 8 HOURS WORK ON THAT DAY. FOR YOUR WORK ON THOSE DAYS YOU SAY YOU RECEIVED PREMIUM COMPENSATION UNDER THE PROVISIONS OF 8 U.S.C. 1353 (A). YOUR SCHEDULED TOUR OF DUTY ON MONDAY, NOVEMBER 13, WAS IDENTICAL TO YOUR SUNDAY SCHEDULE. YOU CONTEND THAT YOU ARE ENTITLED TO 1 HOUR OF OVERTIME COMPENSATION ON NOVEMBER 12 AND 13 FOR THE PERIOD MIDNIGHT TO 1 A.M. BECAUSE YOU WORKED IN EXCESS OF 8 HOURS ON THOSE DAYS. ACTUALLY YOUR CLAIM IS FOR HOLDING OVER 1 HOUR AT THE END OF YOUR TOURS ON THE 11TH AND 12TH. IT IS CLEAR FROM THE INFORMATION YOU FURNISHED THAT YOU ONLY WORKED 8 HOURS ON SATURDAY, NOVEMBER 11; 8 HOURS NOVEMBER 12; AND THE SAME NUMBER OF HOURS MONDAY, NOVEMBER 13. THE DATES OF SEPTEMBER 18, 24 AND 25; JUNE 10, 11 AND 12, ALL IN 1967 AND FEBRUARY 11 AND 2; MARCH 17; APRIL 14, 15 AND 28, ALL IN 1968, HAD TOURS SIMILAR TO THOSE ON THE ABOVE DATES. YOU DID NOT PERFORM MORE THAN 8 HOURS OF WORK ON ANY OF THOSE DATES, BASED UPON THE INFORMATION YOU FURNISHED, AND THE DEFINITION OF A CALENDAR DAY -- MIDNIGHT TO MIDNIGHT -- APPLIES THERETO.

THE OTHER DATES SHOWN BY YOU, BUT DIFFERING FROM THOSE REFERRED TO ABOVE, ARE SEPTEMBER 26, 1967; FEBRUARY 13; APRIL 16 AND 29, 1968, WHICH DATES ARE CONCERNED WITH THE TIME OF DAY 4 P.M. TO 5 P.M. OR 5 P.M. TO 6 P.M., FOR WHICH YOU ALSO CLAIM OVERTIME COMPENSATION. THE INFORMATION YOU FURNISHED THEREON SHOWS THAT YOUR SCHEDULE CALLED FOR 8 HOURS OF WORK ON SEPTEMBER 25 AS FOLLOWS, MIDNIGHT TO 1 A.M., 1 HOUR, AND 5 P.M. TO MIDNIGHT, 7 HOURS, FOR A TOTAL OF ONLY 8 HOURS WORK ON THAT DAY. HOWEVER, APPARENTLY YOUR CONTENTION IS THAT SINCE YOUR SCHEDULED TOUR ON SEPTEMBER 26 BEGAN AT 4 P.M. AND YOUR TOUR ON SEPTEMBER 25 COMMENCED AT 5 P.M. THE 24-HOUR PERIOD REPRESENTING "DAY" WAS NOT OVER UNTIL 5 P.M. ON THE 26TH AND, THEREFORE, YOU FEEL YOU ARE ENTITLED TO 1 HOUR OF OVERTIME, I.E., 4 TO 5 P.M. ON SEPTEMBER 26 BECAUSE YOU WORKED MORE THAN 8 HOURS IN THAT 24- HOUR PERIOD. YOUR TOUR ON THE FOREGOING DATE COMMENCED AT MIDNIGHT NOT 5 P.M. AS CONTENDED BY YOU. IT IS CLEAR YOU DID NOT WORK MORE THAN 8 HOURS DURING THE 24 HOUR PERIOD, MIDNIGHT TO MIDNIGHT ON SEPTEMBER 26. NOR DID YOU WORK MORE THAN 8 HOURS ON FEBRUARY 13, OR ON APRIL 16 AND 29, 1968, DURING THE PERIOD MIDNIGHT TO MIDNIGHT.

IN VIEW OF THE ADMINISTRATIVE AUTHORITY EXISTING IN THE ABOVE-QUOTED STATUTORY PROVISIONS AND AS CONTAINED IN FPM SUPP. 990-1, REFERRED TO ABOVE, AND SINCE THE SCHEDULED TOURS ON THE DATES FURNISHED BY YOU SHOW THAT YOU WORKED BUT 8 HOURS DURING A CALENDAR DAY-MIDNIGHT TO MIDNIGHT- EVEN THOUGH SOME TOURS WERE SPLIT TOURS AND NOT CONTINUOUS, WE CONCLUDE THAT NO BASIS EXISTS FOR PAYMENT TO YOU OF OVERTIME COMPENSATION UNDER THE PROVISIONS OF 5 U.S.C.A. 5542 BECAUSE YOU DID NOT PERFORM WORK ON SUCH DATES "IN EXCESS OF 8 HOURS IN A DAY.'

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