Presser v. United States

15 Cl. Ct. 672, 28 Wage & Hour Cas. (BNA) 1535, 1988 U.S. Claims LEXIS 164, 1988 WL 109297
CourtUnited States Court of Claims
DecidedOctober 20, 1988
DocketNo. 428-87C
StatusPublished
Cited by1 cases

This text of 15 Cl. Ct. 672 (Presser v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Presser v. United States, 15 Cl. Ct. 672, 28 Wage & Hour Cas. (BNA) 1535, 1988 U.S. Claims LEXIS 164, 1988 WL 109297 (cc 1988).

Opinion

OPINION

NETTESHEIM, Judge.

After transfer from the United States District Court for the District of Montana, this case is before the court on cross-motions for summary judgment after argument. Post-argument briefing has been received. The issue is whether the Government is required to compensate a federal employee assigned as a relief operator at an overtime rate when the employee’s regular working hours were rescheduled, as needed, requiring him to be available to work other shifts in lieu of his basic workweek.

FACTS

Robert Presser (“plaintiff”) sues for overtime compensation pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 207(a)(1), 216(b) (1982) (the “FLSA”), and liquidated damages, 29 U.S.C. § 216(b). The following facts are undisputed unless otherwise noted. Plaintiff served as a Relief Control Room Operator by the Department of the Interior, Bureau of Reclamation (the “BOR”), Hungry Horse Project Office, Hungry Horse, Montana. Plaintiff was employed in this position from June 19, 1978, until May 24, 1987.

During the period 1978 through 1981, plaintiff’s wages were established by a negotiated wage schedule between the Government and the International Brotherhood of Electrical Workers (“IBEW”). Following the decertification of the IBEW on June 24, 1981, plaintiff’s salary was established by regional wage surveys conducted by the BOR.

Plaintiff initiated two grievances by letters of July 2, 1981, and September 24, 1981, concerning the scheduling of his hours of work. The earlier grievance charged that his work schedule was changed without proper notice and that he was required to work more than one shift within a 24-hour period. Plaintiff complained in the September 1981 grievance that he was required to work 10 consecutive 8-hour day shifts without 2 days off. The September 1981 grievance was considered formally and encompassed the substance of the July 1981 grievance, as well. Plaintiff’s grievance was deemed without merit on appeal to the Department of the Interior’s Office of Hearings and Appeals. The June 12, 1982 decision letter addressed both grievances, as follows:

In a letter to the appeals examiner dated January 27, 1982, the acting regional director explained the nature of grievant’s work situation:
The powerplant control room is manned on a 3 shift, 24-hour-a-day, 7-day-a-week basis. This is accomplished with a staff of 5 journeymen powerplant operators, including Mr. Presser. Four of these powerplant operators work on a regularly scheduled rotating basis so that during the year each one will have worked about an equal number of day, swing and graveyard shifts. The fifth powerplant op[674]*674erator (Mr. Presser), works a scheduled relief shift based on the administrative workweek of Sunday through Saturday and a normal basic workweek schedule of Monday through Friday. However, it is the nature of the relief position that variations can be scheduled in advance to provide for leave periods and other absences by Hungry Horse’s regular operators. Hungry Horse’s work scheduling policy provides that the relief operator’s schedule for each biweekly period must be posted a[t] least 4 days in advance and that a minimum of 8 hours advance notice of any change of scheduled tour of duty should be given. In laying out the biweekly schedule, if the relief operator is not needed to replace one of the other operators, he is scheduled as a second operator on the day shift_ [Ellipses in original.]
Prior to 1978, the relief operator worked what is referred to as a “back-to-back” week, which required 10 consecutive days work with 4 consecutive days off. In May of 1978, the operators requested that this be changed to the current five-day work, two-day off schedule to which management agreed. This provides more flexibility for operators to schedule annual leave and also makes the relief position more attractive as it includes the greatest number of Saturdays and Sundays off. For many years it was the Project practice that the- operator with the least seniority on the project filled the relief position and Mr. Presser, as junior operator, worked this relief schedule from June 22, 1978 to September 8, 1978, when another operator was hired. Mr. Presser then filled one of the four rotating operator positions until April 11, 1980, when he requested that he again be assigned to the relief position. This was agreeable to the operator with the least seniority who would normally fill this position and Mr. Presser has worked on the relief schedule since that time.

The acting regional director states further that for the pay period in question, the hours of work during each workweek were performed within a period of 5 consecutive workdays, that grievant was not in pay status in excess of 40 hours in each administrative workweek, worked only the 8 a.m. to 4 p.m. shift, and worked only one shift during each 24-hour period.

With respect to work scheduling, the acting regional director stated as follows in a letter dated March 12, 1982, to the appeals examiner:

The General Rule for establishing work schedules (Chapter 61, Title 5 US Code and FPM 610-1-4) states that an employee should be assigned a tour of duty at least a week in advance. Agencies may depart from this General Rule if it would seriously handicap the organization in carrying out its functions or would substantially increase costs. The work-scheduling policy for the relief operator is a departure from the general rule in that the relief operator’s schedule for each biweekly period must be posted at least 4 days in advance and a minimum of 8 hours advance notice of any change of scheduled tour of duty should be given. Without this latitude in scheduling, costs would be increased and the function would be handicapped. The departure from the General Rule is discretionary with the agency and not in violation of rules and regulations.

An administrative workweek consists of 7 consecutive calendar days. 5 CFR 610.102(a). Under 5 U.S.C. § 5542 (1976), overtime work means each hour of work in excess of 8 hours in a day or in excess of 40 hours in an administrative workweek. 5 CFR 550.111(a). Under the Fair Labor Standards Act, entitlement to overtime compensation is based on the number of hours an employee works in a workweek. The fact that an employee may be required to work more than 5 consecutive 8-hour days does not give rise to an entitlement to overtime compensation unless more than 5 such days are worked in the same workweek. [675]*675Moreover, it is possible for an employee to work 10 consecutive 8-hour days — 5 in each of two administrative workweeks— and not be entitled to overtime compensation. Dec.Comp.Gen. G-193384/B-193544/B-194035 (June 18, 1979).

Grievant has provided no specific information to support his allegation that he worked more than one shift in a 24-hour period or that he is being subjected to arbitrary schedule changes.

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Bluebook (online)
15 Cl. Ct. 672, 28 Wage & Hour Cas. (BNA) 1535, 1988 U.S. Claims LEXIS 164, 1988 WL 109297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/presser-v-united-states-cc-1988.