To Rexford E. Bruno, United Air Lines, Inc., July 8, 1957: Further reference is made to your letter of June 12, 1957, and our acknowledgment thereof on June 25, 1957, concerning the disputed ferry mileage claims on certain charter air movements during 1951 and 1952.

With your letter of November 16, 1956, you enclosed a copy of an opinion from your Legal Department, apparently in reply to a request which you made for a review of our decision of July 26, 1956, 36 Comp. Gen. 66, in which we explained why we believed that the audit action by our Transportation Division was proper in the disallowance of your claims for ferry mileage on some forty-one CAMS.

We have studied the opinion of your Legal Division and have noted its comments on certain portions of our letter of July 26, 1956, especially that portion dealing with Rule 14(c) of the United Air Lines, Inc., Passenger Charter Tariff No. 4, C. A. B. No. 19, which is alleged by you to authorize the use by your company of unneeded or unused space on the ferry flight of a charter plane. The item in question reads as follows:

(C) Unused Space: UAL reserves the right to use any cargo and/or storage space without charge on the charter plane which is not needed or used by the charterer or the charter passengers. [Italics supplied.]

We have underlined certain words in the text of this rule because they are included in the list of terms defined in Rule 1 of this tariff, as follows:

1. Definitions:

As used in this tariff, unless the context otherwise requires:

(A) Charterer: The term "charterer" means a person, firm, corporation, association, partnership, or body politic who, at charges indicated herein, has acquired the use of a charter plane for travel to a specified destination or for a particular itinerary agreed upon in advance.

(B) Charter Flight: The term "charter flight" means common carriage transportation and incidental services furnished by UAL in a charter plane beginning at the time the charter plane is furnished the charterer for use at point of origin and ending with the final discharge at point of destination.

(C) Charter Passenger: The term "charter passenger" means any person carried on a charter flight.

(D) Charter Plane: The term "charter plane" means an airplane furnished and operated by UAL expressly for a charterer.

After quoting the language of Rule 14 (c), your Legal Division states:

Quite obviously, Rule 14 adequately reserves the right to United to transport cargo on any portion of the charter flight, whether "live" or "ferry". [Italics supplied.]

By reference to the definition of "charter flight," as published in Rule 1 (B), the term "charter flight" used in the tariff does not include any portion of the ferry flight, since the "charter flight" begins "at the time the charter plane is furnished the charterer for use at point of origin and ending with the final discharge at point of destination."

[B-129965]

Federal Employees-Overtime Compensation-Irregular, Unscheduled Duty-Holiday Pay

The word "unscheduled" in section 203 of the Federal Employees Pay Act of 1945, as amended by section 205 of the act of September 1, 1954, 5 U. S. C. 912a. which provides overtime compensation for a two-hour minimum period of call-back duty is the antithesis of the word "scheduled" which refers to work scheduled in advance over periods of not less than one week, and, therefore, call-back work which is announced at the beginning of the workweek for performance during that week must be regarded as unscheduled duty and the employee is entitled to overtime compensation for a minimum of two hours regardless of the length of the call-back duty.

An employee who has a regularly scheduled tour of duty from 2:30 p. m. to 11:00 p. m., Monday through Friday, and who on Monday is notified that he must appear in court as a witness on Tuesday from 9:00 to 10:00 a. m. is entitled to be paid for a minimum of two hours of overtime under the unscheduled overtime provisions of section 203 of the Federal Employees Pay Act of 1945, as amended by section 205 of the act of September 1, 1954, 5 U. S. C. 912a.

An employee who is called back to duty on a holiday and performs continuous duty which covers a portion of his regular daily tour of duty and less than two hours overtime is entitled to holiday premium pay for the nonovertime work and to two hours minimum overtime pay for the overtime v ork. The two-hour minimum pay requirement for call-back overtime in 5 U. S. C. 912a and the two-hour minimum pay requirement for holiday work in 5 U. S. C. 922 (b) are coextensive where both overtime and nonovertime work are performed on a holiday and the payment of two hours of overtime compensation where call-back duty on a holiday covers nonovertime duty and less than two hours of overtime satisfies the minimum requirement for both sections 912a and 922 (b).

To the Secretary of the Navy, July 2, 1957:

The Assistant Secretary's letter of May 2, 1957, concerns, among other things, payment of overtime compensation for a two-hour minimum period of call-back overtime under section 203 of the Federal Employees Pay Act of 1945, as amended by section 205 of the act of September 1, 1954 (Public Law 763), 68 Stat. 1110, 5 U. S. C. 912a, reading as follows:

For the purposes of this Act, 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.

The Assistant Secretary says that heretofore your Department has considered that overtime work was "scheduled" and, therefore, not within the purview of section 203 if the employee was notified of the call-back in advance of his leaving the place of employment; but that our decision of March 19, 1956, B-129965, 36 Comp. Gen. 657, construing the phrase "regularly scheduled" appearing in section 301

1

468020 O-58-3

the poem ream sued in the

604 (2) 21. Luring preceding paragh & Lister The specific ses premet ir or sa vll be rusted and answered in the trier presented in the Essar Secretary's letter.

irregular terus 1 winnen lang he is notified u BGR I DE FOLL ordered. gives bs IT END & THEME hour's overtime na the was the is dan ong was lequel" Bt caLINE call-back overtime of 2W1 Hours

Since the offcd buy of ameang # 1 Vines in court was not within a tour of burg scheduC II ACTERS 11. ausordance with the statutory provisions and regulations chec above and was separate and distinct, in point of time from the regular tour of duty, the employee is entitled to be credned vIL the muaumum of two hours of overtime under section 275.

The next two cases are related and wil be quoted and considered together.

An employee's regularly scheduled woodwest is & W am to 4:30 p. m. Monday through Friday. Or Wednesday & holide eccurred on which he would ordinarily be excused from work it was notified before the close of work on Monday that he might be required to work & part of the Wednesday hobday. He was called at his home Wednesday morning and toic u report for work at 8:30 pm. that day. He reported as ordered and completed the work required of him at 5:00 p. m. Employer was paid two hours noliday premium pay under section 302 (b). He claims two hours at holiday premium pay for non-overtime work from 8:30 pm to 4:30 pm and two hours of cal-back overtime for the overtime work from 4:30p n. tr ::00 pm.

An employee's regularly scheduled workweek i am 4:00 p. m.. Monday through Friday. On Thursday, & holiday occurred on which he would ordinarily be excluded from work. He was notified before the close of work OL Wednesday that he might be called back to work depending upon the Errival of a vessel He was called at his home at 6.30 am. on Thursday toic to report for work at 6 30am that day. He reported as ordered and c his work at 5:00 am. Employee was paid two hours of holiday

premium pay. He claims two hours of call-back overtime for the overtime work from 6:30 a. m. to 7:30 a. m. and two hours of holiday premium pay for his non-overtime work on the holiday from 7:30 a. m. to 8:00 a. m.

These two cases bring in the holiday pay provisions of section 302 of the 1945 act, as amended by section 207 of Public Law 763, 68 Stat. 1110, 5 U. S. C. 922, the pertinent portions of which read as follows: (a) All work not exceeding eight hours, which is not overtime work as defined in section 201 of this Act and which is performed on a holiday designated by Federal statute or executive order, shall be compensated at the rate of basic compensation of the officer or employee performing such work on a holiday plus premium compensation at a rate equal to the rate of basic compensation of such officer or employee.

(b) Any officer or employee who is required to perform any work on such a holiday shall be compensated for at least two hours of such work,

(e) Overtime work, as defined in section 201 of this Act, on Sundays and such holidays shall be compensated in accordance with the provisions of such section 201.

In line with our answer to the general question, the notification given after the beginning of the workweek would not meet the requirement that overtime be scheduled if the call-back minimum of two hours is to be avoided. However, whether the return to duty was "scheduled" or "unscheduled" is not the sole question involved. We may note parenthetically that the conditions for entitlement to minimum call-back time under section 203 are not prescribed for minimum pay for holiday work under subsection (b) quoted above, 5 U.S. C. 922 (b).

The conference report on proposed legislation which became Public Law 763 makes it clear that the premium rate for holiday work was intended to apply to work on a holiday within the 40-hour basic workweek of an employee (House Report No. 2665, 83d Congress, at page 22); and section 302 (c), 5 U. S. C. 922 (c), provides specifically that compensation for overtime work on a holiday is to be paid under section 201, as amended, 5 U. S. C. 911. Hence, the time worked from 4:30 p. m. to 5:00 p. m. in the first of the two cases recited above is to be regarded as overtime and the time worked from 3:30 p.m. to 4:30 p.m. is to be regarded as work for which the holiday premium rate is prescribed by section 302, as amended. Similarly, in the second of the two cases the time worked from 6:30 a. m. to 7:30 a. m. is to be regarded as overtime and that from 7:30 a. m. to 8:00 a. m., as holiday work. Cf. 26 Comp. Gen. 631; 28 id. 547, 549.

The legislative history of the provisions of Public Law 763 (section 207) which amended section 302 of the 1945 act, as amended, gives the impression that the two-hour minimum prescribed in subsection (b) relates to holiday compensation under subsection (a), 5 U. S. C. 922 (a). Senate Report No. 1190, 83d Congress, at pages 9 and 16; House Report No. 2454, 83d Congress, at page 10; and House (Conference) Report No. 2665, 83d Congress, at page 22. However, the language of subsection (b) does not limit the two hours'