B-162347, SEP. 15, 1967

B-162347, SEP. 15, 1967

COMPENSATION - OVERTIME - NIGHT DIFFERENTIAL DECISION TO CERTIFYING OFFICER OF NASA FOR NIGHT DIFFERENTIAL AND SUNDAY PREMIUM PAY FOR EMPLOYEES AT THE MANNED SPACECRAFT CENTER DURING FEB. - MAR., 1966. THREE EMPLOYEES WHO DID NOT HAVE REGULAR RECURRING SCHEDULES OF DUTY BUT WHO, INCIDENT TO WORK, PLANS CALLING FOR THE FIRST 40 - HOUR TOUR TO BE THEIR ADMINISTRATIVE WORKWEEK, MANNED CONSOLES FOR 8-HOUR PERIODS EACH DAY MAY HAVE FACT THAT WORK WAS PERFORMED ON REGULAR BASIS AND CONFORMED TO WORK PLANS REGARDED AS REGULARLY SCHEDULED FOR PURPOSES OF 5 U.S.C. 5545 AND THEREFORE, NIGHT DIFFERENTIAL AND SUNDAY PREMIUM COMPENSATION MAY BE PAID. B-161775.

TO MR. PAUL A. HARRELSON:

WE REFER TO YOUR LETTER OF MAY 8, 1967, REFERENCE BR6, REQUESTING A DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN FAVOR OF MR. JON FARBMAN, AN EMPLOYEE OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MANNED SPACECRAFT CENTER, HOUSTON, TEXAS, COVERING NIGHT DIFFERENTIAL PAY AND SUNDAY PREMIUM PAY DURING THE PERIOD FEBRUARY 27, 1966, THROUGH NOVEMBER 19, 1966.

YOU SAY THAT DURING THE PERIOD OF THE CLAIM MR. FARBMAN, WHO IS EMPLOYED IN A GENERAL SCHEDULE POSITION, WAS ASSIGNED TO A "FIRST-40 HOUR" TOUR OF DUTY SINCE IT WAS ADMINISTRATIVELY DETERMINED THAT IT WAS IMPRACTICAL TO ESTABLISH A REGULARLY SCHEDULED TOUR OF DUTY. THE CLAIMANT, ALONG WITH THREE OTHER EMPLOYEES, MANNED A CONSOLE ON A 24 HOUR BASIS, 7 DAYS PER WEEK. WE UNDERSTAND THAT, IN FACT, THE EMPLOYEES WORKED IN ACCORDANCE WITH WORK PLANS SPECIFYING THE CONTEMPLATED 8-HOUR TOURS EACH EMPLOYEE WOULD WORK DURING EACH SUCH 24 HOUR PERIOD (TAB C). HOWEVER, THERE WERE SOME WEEKENDS AND TIMES DURING THE WEEK THAT THE CONSOLE WAS UNMANNED AND OTHER VARIATIONS FROM THE WORK PLANS OCCURRED FROM TIME TO TIME RESULTING FROM THE USE OF LEAVE. IT IS REPORTED THAT THE SUPERVISORS OF THE ORGANIZATION TO WHICH THE EMPLOYEES WERE ASSIGNED ARE OF THE VIEW THAT THE WORK PLANS DID NOT CONSTITUTE WORK SCHEDULES, AND MERELY WERE DESIGNED TO GIVE THE EMPLOYEES ADVANCE INFORMATION AS TO THE HOURS IT WAS CONTEMPLATED THEY WOULD BE WORKING IN THE EVENT THAT THE MISSION CONTROL CENTER WAS OPERATIONAL DUE TO A FLIGHT. EFFECTIVE NOVEMBER 20, 1966, AFTER THE CENTER HAD GAINED ADEQUATE EXPERIENCE IN THIS OPERATION, THE EMPLOYEES WERE PLACED ON A SPECIAL TOUR OF DUTY BASED ON AN ADMINISTRATIVE DETERMINATION THAT THE EMPLOYEES COULD BE ASSIGNED TO A REGULAR RECURRING SCHEDULE IN ADVANCE, AT WHICH TIME THEY WERE PAID NIGHT DIFFERENTIAL AND SUNDAY PREMIUM PAY.

WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL 5 U.S.C. 5545 PROVIDES THAT NIGHT WORK FOR PREMIUM PAY PURPOSES IS REGULARLY SCHEDULED WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M.

SECTION 405 (C) OF PUB. L. 89-504, APPROVED JULY 18, 1966, 80 STAT, 297, ADDED SECTION 302 TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, WHICH PROVIDES FOR SUNDAY PREMIUM PAY AS FOLLOWS:

"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.'

ALTHOUGH THERE WAS NO REGULAR WORK SCHEDULE DESIGNATED AS SUCH PRESCRIBING THE SPECIFIC HOURS OF DUTY TO BE WORKED EACH WORKDAY BY MR. FARBMAN AND THE OTHER EMPLOYEES, SUCH EMPLOYEES DID HAVE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF WHICH THE FIRST 40 HOURS OF WORK CONSTITUTED THE BASIC WORKWEEK. SEE 5 CFR 610.111 (B). MOREOVER, THEIR WORK IN FACT WAS PERFORMED ON A REGULAR BASIS AND GENERALLY CONFORMED WITH WORK PLANS ISSUED BY THEIR SUPERVISORS WHICH PROVIDED FOR 8-HOUR PERIODS OF DUTY. IN THIS REGARD IT IS NOTED THAT DURING THE PERIOD FEBRUARY 27 TO NOVEMBER 19, 1966, MR. FARBMAN HAD WORKED MORE THAN 830 HOURS BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. IN ADDITION, FOLLOWING THE EFFECTIVE DATE OF SECTION 405, PUB. L. 89-504, HE WORKED SEVERAL SUNDAYS IN ACCORDANCE WITH THE ESTABLISHED WORK PLANS.

SINCE THE NIGHT WORK AND THE SUNDAY SERVICES IN FACT WERE PERFORMED REGULARLY BY THE EMPLOYEE ACCORDING TO A FIXED WORK PLAN SET UP BY HIS SUPERVISORS, IT IS NOT UNREASONABLE TO VIEW SUCH NIGHT AND SUNDAY DUTY AS HAVING BEEN "REGULARLY SCHEDULED" WITHIN THE MEANING OF THE CONTROLLING STATUTES. CF. 41 COMP. GEN. 8; UNITED STATES V. AVILES, 151 CT. CL. 1; B- 161775, DATED AUGUST 10, 1967 (COPY ENCLOSED).

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.