United Federation of Postal Clerks, AFL-CIO v. Watson

• Citation: 133 US App. DC 176,409 F.2d 462
• Decision Date: 27 February 1969
• Docket Number: No. 21685.,21685.
• Parties: UNITED FEDERATION OF POSTAL CLERKS, AFL-CIO, et al., Appellants, v. W. Marvin WATSON, Postmaster General of the United States, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

133 US App. DC 176, 409 F.2d 462 (1969)

UNITED FEDERATION OF POSTAL CLERKS, AFL-CIO, et al., Appellants, v. W. Marvin WATSON, Postmaster General of the United States, Appellee.

No. 21685.

United States Court of Appeals District of Columbia Circuit.

Argued December 2, 1968.

Decided February 27, 1969.

COPYRIGHT MATERIAL OMITTED

Mr. Herbert S. Thatcher, Washington, D. C., with whom Mr. Donald M. Murtha, Washington, D. C., was on the brief, for appellants.

Mr. Ralph A. Fine, Attorney, Department of Justice, with whom Asst. Atty. Gen. Edwin L. Weisl, Jr., Messrs. David G. Bress, U. S. Atty. and Alan S. Rosenthal, Attorney, Department of Justice, were on the brief, for appellee. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

BAZELON, Chief Judge:

In this action for declaratory judgment and injunctive relief, appellants challenge the Postmaster General's construction of Sections 3571 and 3573 of the Federal Employees Salary Comparability Act of 1965.¹ These sections purportedly modernized the working conditions of postal employees by providing overtime pay for overtime work in place of the anachronistic system of compensatory time off, but appellants say the Post Office has found an ingenious (but illegal) way to avoid the prescribed modernization. The District Court granted summary judgment against appellant Groettum and dismissed the complaint as to the appellant Federation for want of standing.

Under the Salary Act, set out in pertinent part in the margin,² the Postmaster General is required to "establish work schedules in advance for annual rate regular employees consisting of five eight-hour days in each week." Any annual rate regular who is required to work "in excess of his regular work schedule" must be paid overtime for such work. The Postmaster General has authority "to determine the * * * week used in computing overtime work."

Pursuant to this statutory scheme, the Postmaster General established a "service week" extending from Saturday to Friday. Appellant Groettum, a senior annual rate regular employee, was assigned a work schedule calling for a Monday-to-Friday workweek.³ Thus, five days did appellant labor, and on the first and second day (of the service week) he rested. On Thursday, June 16, 1966, however, appellant was informed that because of a temporary shortage of personnel, his schedule for the next week was to be changed, so that he would work Saturday and Sunday and rest Monday and Friday. He did as he was told, but received no overtime pay for working on his regularly scheduled off days. At the end of the aberrant week he resumed his customary routine. He now contends that he should have been paid overtime for this weekend work "in excess of his regular work schedule."

Undaunted by this contention, appellee has in fact made such temporary changes in work schedules (without payment of overtime) an announced departmental policy.⁴ As a result, the appellant Federation has other complaining members, present and prospective, besides Groettum, and seeks equitable relief against this established practice.

I

Appellee appears to regard as the central issue his right to make temporary changes in established work schedules to meet emergencies and transitory needs of the service.⁵ He notes that nothing in the Act expressly prohibits such temporary changes, so long as they are made "in advance" and so long as they do not require more than five days' work in any service week (or more than eight hours in any day). And he points to legislative history which indicates Congressional concern to avoid interfering with his authority to schedule weekend work where necessary.⁶

We agree that under the Act appellee may temporarily alter work schedules upon proper notice given "in advance." Not only is there no express bar against such changes, but the Act repeatedly refers to "regular work schedules,"⁷ thus plainly implying the possibility of temporary alterations. The question, however, is whether the employees whose schedules have been disrupted are entitled to premium pay for any regularly scheduled off days they are required to work. The statute calls for overtime compensation for any work "in excess of the * * * regular work schedule."⁸ If we are to give any force to the word regular in this provision, we cannot accept appellee's contention that Congress intended to pay overtime only for work in excess of eight hours in one day or five days in any service week. All work schedules for annual rate regular employees under the Act consist of five eight-hour days,⁹ and if Congress meant to limit overtime to work quantitatively in excess of the statutorily defined "work schedule," the word "regular" was mere surplusage. Moreover, for all other postal employees, the Act defines overtime quantitatively in terms of the number of hours and days worked.¹⁰ That it chose a different formulation in terms of "work schedule" for annual rate regulars strongly suggests that it had an additional nonquantitative consideration in mind — namely, which days and hours in particular the employee was compelled to work.¹¹

Admittedly, Congress could have expressed this intent at a saving of untold confusion if it had simply called overtime any work "outside of" the regular work schedule. In addition, there is some language in the legislative history to support the view that overtime under the Act is only work "on a sixth or seventh day" or for "more than eight hours a day."¹² In many respects besides this one, the statute will not be remembered as a classic of lucid drafting. But the major thrust of the legislative history and the tenor of the statute as a whole support the construction advanced by appellants.

In endorsing the Act then pending before the Senate Post Office and Civil Service Committee, Postmaster General Gronouski expressed his "amazement" at the "antiquated, unsatisfactory" overtime practices then in effect in the Post Office Department.¹³ One of these practices was that

our regulars, ostensibly assigned Monday-through-Friday schedules, were getting only compensatory time for working many Saturdays and Sundays.

Such employees were entitled to compensatory time off within five days of any weekend they were obliged to work, but were paid no overtime.¹⁴ The 1964 Act was intended to remedy this, as well as other anomalies in the conditions of postal employ.¹⁵

Appellants say with considerable justice that on appellee's construction of the Act, the ostensible abolition of compensatory time off was a grand gesture which accomplished nothing. Under the archaic system which amazed Postmaster General Gronouski, an employee who worked the weekend was compensated by two holidays before the next weekend. Under the new, modern overtime system as construed by the present Postmaster General, that is precisely the compensation received by appellant Groettum for his weekend labors. Under the guise of a "temporary change" in his work schedule, he worked Saturday and Sunday and was rewarded with vacations on Monday and Friday. If this procedure was legal, compensatory time off was abolished in name only, and the Post Office need never pay its annual rate regulars overtime for working on off days unless it neglects to change (temporarily) their regularly scheduled workweek in advance.¹⁶ We cannot lightly assume that Congress's mighty labors brought forth such a mouse.

Moreover, elsewhere in the Act Congress specifically provided that

Each regular employee whose regular work schedule includes an eight-hour period of service any part of which is within the period commencing at midnight Saturday and ending at midnight Sunday shall be paid extra compensation at the rate of 25 per centum of his hourly rate of basic compensation for each hour of work performed during that eight-hour period of service.¹⁷

Thus, if appellee's construction were correct, while an employee whose regular work schedule includes Sunday would be paid extra for his Sabbatical labors, an employee who is worked Sunday only during temporary emergencies on short notice would receive no bonus at all for his unwonted pains. This result would be contrary to the Post Office's own theory of premium pay as a device

(1) to encourage the employer to hire additional workers rather than pay a premium, and

(2) to pay a differential to scheduled employees for inconveniencing them for working beyond their schedule.¹⁸

We are satisfied that no such anomalous result was intended.

It is true, as appellee insists, that Congress was careful not to circumscribe Post Office authority to schedule weekend work. To that end it eliminated any presumption in favor of a Monday-to-Friday workweek¹⁹ and provided only that senior regular employees should have preference for that schedule "to the maximum extent practicable."²⁰ Instead of a nominal Monday-to-Friday norm often observed in the breach, we think Congress offered a regular predictable schedule,²¹ including extra pay for any non-scheduled days. This scheme improves the conditions of postal employ without impeding the flow of the weekend mail. In short-term emergencies for which the regularly scheduled contingent is inadequate, the Postmaster General may schedule (1) substitutes at regular pay, (2) hourly rate regular employees at regular pay, or (3) additional annual rate regulars on their days off at overtime rates. Moreover, nothing in this opinion impairs the Postmaster General's discretion under the Act to eliminate or curtail the need for overtime work by changing the regular work schedules of as many employees as may be necessary — a question not involved in this case, where there is no contention that any such changes were made.

II

The remaining question is whether the appellant Federation is entitled to judgment in its favor as well, thereby supplying the predicate for injunctive relief. The Federation claims...