B-155197, OCTOBER 8, 1964, 44 COMP. GEN. 195

B-155197, OCTOBER 8, 1964, 44 COMP. GEN. 195

COMPENSATION - OVERTIME - IRREGULAR, UNSCHEDULED - GUARDS. VOLUNTARY SERVICES - OFFICERS AND EMPLOYEES - REPORTING EARLY FOR DUTY - CLOTHING CHANGES, ETC. COMPENSATION - OVERTIME - IRREGULAR, UNSCHEDULED - GUARDS BUILDING GUARDS ON ROTATING SHIFTS WHO ALTHOUGH NOT REQUIRED BY REGULATION ARE EXPECTED TO REPORT EARLY FOR ROLL CALL TO RECEIVE SPECIFIC ASSIGNMENTS AND INSTRUCTIONS AND TO PERFORM PREPARATORY OPERATIONS, SUCH AS DRAWING BADGES, WEAPONS, AND OTHER EQUIPMENT FROM A CENTRAL LOCATION PRIOR TO COMMENCING A TOUR OF DUTY MAY BE PAID OVERTIME COMPENSATION FOR THE TIME IN EXCESS OF THEIR DUTY TOURS PURSUANT TO THE PRINCIPLE ENUNCIATED IN THE ADJUDICATION OF ENTITLEMENT TO OVERTIME WHEN AN EMPLOYEE REPORTS FOR ROLL CALL AND PREPARATORY OPERATIONS PRIOR TO STARTING A TOUR OF DUTY, AND THE LONG-ESTABLISHED PRACTICE OF PAYING GUARDS FOR LUNCH PERIODS AND OTHER 15 MINUTE BREAKS ON THE BASIS OF UNINTERRUPTED HOURS OF DUTY MAY BE CONTINUED ABSENT NEW FACTS TO WARRANT MODIFICATION OF B-56940 OF MAY 1, 1946. EMPLOYEES WHO OF THEIR OWN VOLITION ARRIVE PRIOR TO THE TIME NECESSARY FOR ACTUALLY REPORTING ON DUTY AND SPEND MORE THAN A DE MINIMIS AMOUNT OF TIME BEFORE AND AFTER WORK GOING TO AND FROM LOCKERS TO REMOVE OR DON OUTER GARMENTS AND/OR CHANGE INTO WORK CLOTHES ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR THE TIME INVOLVED IN REPORTING EARLY FOR DUTY, THE EMPLOYEES ONLY HAVING BEEN AFFORDED FACILITIES FOR THE VOLUNTARY TASKS THEY ASSUMED, THERE IS NO LEGAL REQUIREMENT OR JUSTIFIABLE LEGAL BASIS FOR THE PAYMENT OF OVERTIME COMPENSATION. UPON ISSUANCE OF AN ADMINISTRATIVE REGULATION INCREASING THE WORKDAY 15 MINUTES, EFFECTIVE ON DATE OF ISSUANCE AND PROVIDING FOR PAYMENT OF OVERTIME COMPENSATION FOR 15 MINUTES A DAY, OVERTIME COMPENSATION MAY BE PAID TO GUARDS REQUIRED TO REPORT EARLY FOR ROLL CALL AND THE PERFORMANCE OF OPERATIONS NECESSARY TO PREPARE FOR DUTY; HOWEVER, ALL CLAIMS FOR RETROACTIVE ADJUSTMENT OF OVERTIME COMPENSATION SHOULD BE SUBMITTED TO THE UNITED STATES GENERAL ACCOUNTING OFFICE TO ESTABLISH PURSUANT TO 31 U.S.C. 71A WHETHER THE CLAIMS WERE RECEIVED WITHIN 10 FULL YEARS AFTER DATE OF ACCRUAL, WITH INFORMATION AS TO THE EVIDENCE AVAILABLE IN SUPPORT OF THE CLAIMS, THAT IS, DID THE GUARDS REPORT EARLY UNDER ORDERS AND DO THE RECORDS SHOW THE EARLY REPORTING DAYS, AND ALTHOUGH THE TIME CONSUMED FOR LUNCH AND RELIEF BREAKS SHOULD NOT BE SET OFF AGAINST THE OVERTIME, ADMINISTRATIVE TIME OFF BASED ON AN EXACT RECORD MAY BE DEDUCTED.

TO THE SECRETARY OF THE TREASURY, OCTOBER 8, 1964:

ON SEPTEMBER 16, 1964, YOUR ACTING ASSISTANT SECRETARY REQUESTED OUR DECISION UPON SEVERAL QUESTIONS RELATING TO THE ENTITLEMENT OF BUILDING GUARDS AND CERTAIN OTHER EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING TO OVERTIME COMPENSATION INCIDENT TO EARLY REPORTING FOR ROLL CALL AND PERFORMANCE OF CERTAIN PREPARATORY OPERATIONS PRIOR TO ACTUAL COMMENCEMENT OF THEIR ASSIGNED DUTIES. YOUR ACTING ASSISTANT SECRETARY'S LETTER SAYS--

* * * AT PRESENT A BUILDING GUARD FORCE OF 140 GUARDS AND SUPERVISORS IS DIVIDED INTO 3 COMPANIES, EACH PROVIDING COVERAGE FOR A SPECIFIC 8-HOUR SHIFT. STATED TOURS OF DUTY ARE AS FOLLOWS:

TABLE

TOUR OF DUTY

COMPANY A 12 MIDNIGHT TO 8 A.M.

COMPANY B 8 A.M. TO 4 P.M.

COMPANY C 4 P.M. TO MIDNIGHT

THE BUREAU OF ENGRAVING AND PRINTING ASSUMED JURISDICTION OF THE BUILDING GUARDS FROM THE UNITED STATES SECRET SERVICE ON JULY 1, 1953. PRIOR TO AND FOLLOWING THAT TIME BUILDING GUARDS HAVE STOOD ROLL CALL 15 MINUTES BEFORE THEIR STATED TOURS OF DUTY. THIS MUSTER IS FOR THE PURPOSE OF DETERMINING THAT SUFFICIENT STAFF IS AVAILABLE TO COVER ALL POSTS ON THE ENSUING SHIFT, TO MAKE ASSIGNMENTS TO SPECIFIC POSTS OF DUTY, TO ISSUE SPECIAL INSTRUCTIONS OR ORDERS OF THE DAY, AND TO PROVIDE TIME FOR THE GUARDS TO GO TO THEIR ASSIGNED POSTS AND, AS NECESSARY, RELIEVE THE OUTGOING SHIFT.

GUARDS ARE REQUIRED TO BE EQUIPPED WITH REVOLVERS, BADGES, AND CAPS WHILE ON DUTY BUT ARE NOT PERMITTED TO TAKE THIS EQUIPMENT FROM THE PREMISES. ACCORDINGLY, BEFORE REPORTING FOR ROLL CALL, THEY MUST OBTAIN THEIR REVOLVERS FROM A GUN CASE AT A CENTRAL LOCATION AND OBTAIN THEIR OTHER EQUIPMENT FROM THEIR LOCKERS.

IMMEDIATELY AFTER HEARING HIS ASSIGNMENT AT ROLL CALL, EACH GUARD DEPARTS FOR HIS POST OF DUTY. AS A CONSEQUENCE, THE GUARD COMING ON DUTY MAY TAKE OVER THE POST SEVERAL MINUTES BEFORE THE BEGINNING OF HIS STATED TOUR. THE RELIEVED GUARD IS REQUIRED TO RETURN HIS WEAPON TO THE GUN CASE AND PLACE HIS CAP AND BADGE IN HIS LOCKER. HE IS THEN FREE TO LEAVE THE BUILDING, EVEN THOUGH THIS MAY BE BEFORE THE END OF HIS STATED TOUR OF DUTY. STUDIES MADE TO DETERMINE THE DAILY, WEEKLY, AND BIWEEKLY AVERAGE TIME REQUIRED FOR A GUARD TO PICK UP HIS CAP, BADGE, AND REVOLVER, APPEAR FOR ROLL CALL, RESEARCH HIS DUTY STATION, SERVE AT HIS STATION (INCLUDING TIME SPENT TAKING HIS BREAKS), RETURN HIS CAP, BADGE, AND REVOLVER, AFTER BEING RELIEVED, TOTAL SLIGHTLY OVER 8 HOURS AND 15 MINUTES PER SHIFT.

SCHEDULED RELIEF PERIODS OF ABOUT 15 MINUTES TWICE PER SHIFT AND 30 MINUTE SCHEDULED LUNCH PERIODS DURING DUTY ASSIGNMENTS ARE ARRANGED BY THE PLATOON COMMANDER ON AN EQUITABLE BASIS. IN ADDITION, PROVISIONS ARE MADE FOR EMERGENCY OR UNSCHEDULED RELIEFS DURING THE SHIFT UPON REQUEST OF A GUARD. DURING ALL BREAKS THE GUARDS ARE RELIEVED FROM THEIR POSTS BUT ARE NOT ALLOWED TO LEAVE THE BUREAU BUILDINGS. THE EQUIVALENT TIME OF ABOUT 10 GUARDS IS ASSIGNED TO MEET SCHEDULED AND EMERGENCY RELIEF REQUIREMENTS ON A 5-DAY WEEK BASIS TO COVER THE 24 HOUR TOUR OF DUTY. FOR THE REMAINDER OF THE WEEK (SATURDAY, SUNDAY, AND HOLIDAYS), THE EQUIVALENT TIME OF ABOUT 6 GUARDS IS ASSIGNED FOR THIS SAME PURPOSE. EMPLOYEES OTHER THAN GUARDS ARE NOT PERMITTED TO LEAVE BUREAU PREMISES UNTIL THEIR STATED TOUR OF DUTY ACTUALLY ENDS.

WE UNDERSTAND THAT WHILE NO WRITTEN PROCEDURES OR REGULATIONS HAVE BEEN ISSUED CONCERNING ROLL CALL, GUARDS ARE APPRISED ORALLY AT THE TIME OF RECRUITMENT AND DURING TRAINING COURSES THAT THEY ARE EXPECTED TO BE PRESENT AT ROLL CALL. THIS PRACTICE REPORTEDLY DATES BACK TO THE EARLY DAYS OF THE BUREAU AND HAS BEEN CONCURRED IN BY THE BUREAU'S MANAGEMENT STAFF. WE ARE INFORMED ALSO THAT EACH BUREAU EMPLOYEE WORKS FIVE DAYS A WEEK, EIGHT HOURS A DAY, WHICH PERIOD INCLUDES A 30 MINUTE PAID LUNCH PERIOD. THE PRACTICE OF PAID LUNCH PERIODS DATES BACK TO 1862 AND WAS APPROVED IN COMPTROLLER GENERAL'S DECISION OF MAY 1, 1946, B-56940.

THE LETTER OF YOUR ACTING ASSISTANT SECRETARY ALSO REFERS TO CERTAIN OTHER EMPLOYEES OF THE BUREAU WHO ARRIVE AT THE BUREAU PRIOR TO THE TIME NECESSARY FOR ACTUALLY REPORTING ON DUTY IN ORDER TO CHANGE INTO CLOTHING THAT IS MORE APPROPRIATE FOR THE MOST EFFECTIVE PERFORMANCE OF THEIR ASSIGNED DUTIES. YOU SAY THAT THESE EMPLOYEES ARE NOT EXPECTED TO TRAVEL TO OR FROM THE BUREAU IN THEIR WORK CLOTHES. ALSO, YOU SAY THAT INCLEMENT WEATHER AND DURING THE WINTER SEASON PRACTICALLY ALL EMPLOYEES GO TO THEIR LOCKERS FOR THE PURPOSE OF REMOVING OVERCOATS, RAINCOATS, HATS, BOOTS, ETC.

YOU REQUEST OUR DECISION UPON THE FOLLOWING SPECIFIC QUESTIONS:

1. IS THE BUREAU OF ENGRAVING AND PRINTING REQUIRED TO PAY OVERTIME COMPENSATION AT THE RATE OF TIME AND A HALF TO BUILDING GUARDS UNDER THE CIRCUMSTANCES SET FORTH ABOVE?

2. IF THE BUREAU OF ENGRAVING AND PRINTING IS REQUIRED TO PAY THIS OVERTIME COMPENSATION TO BUILDING GUARDS, ARE OTHER EMPLOYEES OF THE BUREAU ENTITLED TO OVERTIME COMPENSATION IF THEY SPEND MORE THAN A DE MINIMIS AMOUNT OF TIME BEFORE AND AFTER WORK GOING TO AND FROM THEIR LOCKERS REMOVING OR DONNING OUTER GARMENTS AND/OR CHANGING INTO APPROPRIATE GARB, AND SUCH TIME IS REASONABLY NECESSARY FOR THIS PURPOSE?

3. IN THE EVENT THAT OVERTIME COMPENSATION IS REQUIRED, SHOULD SUCH PAYMENTS BE MADE RETROACTIVE AND, IF SO, FOR HOW LONG A PERIOD OF TIME?

4. IN THE EVENT THAT OVERTIME COMPENSATION IS REQUIRED, MAY SCHEDULED LUNCH AND SCHEDULED RELIEF BREAKS, AND/OR ADMINISTRATIVE TIME OFF, PRIOR TO THE END OF A STATED TOUR OF DUTY, BE SET OFF FOR THE PURPOSE OF COMPUTING OVERTIME?

SINCE IT REASONABLY APPEARS THAT THE GUARDS WERE NOTIFIED TO REPORT EARLY FOR ROLL CALL FOR THE PURPOSE OF RECEIVING SPECIFIC ASSIGNMENTS AND INSTRUCTIONS AND FOR THE PURPOSE OF DRAWING BADGES, WEAPONS, ETC., OUR OPINION IS THAT THEY ARE ENTITLED TO OVERTIME COMPENSATION UNDER THE PRINCIPLE ENUNCIATED IN ALBRIGHT V. UNITED STATES, 161 CT.CL. 356, AND BAKER V. UNITED STATES, 161 CT.CL. 356. THE LUNCH BREAKS AND OTHER 15- MINUTE BREAKS OCCURRING DURING THE 8-HOUR WORKDAY CONTINUE TO BE REGARDED AS HOURS OF DUTY SINCE NO NEW FACTS NOW APPEAR WHICH WARRANT ANY MODIFICATION IN THE CONCLUSION REACHED IN OUR DECISION OF MAY 1, 1946, B- 56940, REFERRED TO IN YOUR LETTER. YOUR ACTING ASSISTANT SECRETARY'S FIRST QUESTION IS ANSWERED ACCORDINGLY.

THE OTHER EMPLOYEES REFERRED TO IN THE SECOND QUESTION ARE NOT REQUIRED TO REPORT EARLY FOR THE PURPOSE OF CHANGING THEIR CLOTHES AND IT APPEARS THAT THEY WERE MERELY AFFORDED FACILITIES FOR SUCH PURPOSE. THERE DOES NOT APPEAR TO BE ANY LEGAL REQUIREMENT OR JUSTIFIABLE LEGAL BASIS FOR PAYMENT OF OVERTIME COMPENSATION FOR EARLY REPORTING IN THEIR CASES. YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.

CONCERNING THE THIRD QUESTION, WE SUGGEST THAT YOU ISSUE A REGULATION INCREASING THE WORKDAY BY 15 MINUTES EFFECTIVE ON DATE OF ISSUANCE AND PROVIDING FOR PAYMENT OF OVERTIME COMPENSATION FOR 15 MINUTES A DAY FROM THE DATE OF ISSUANCE OF SUCH REGULATION. ALL CLAIMS PENDING, OR THEREAFTER FILED FOR RETROACTIVE COMPENSATION SHOULD BE PROMPTLY TRANSMITTED HERE IN ORDER TO ESTABLISH THE DATE TO WHICH SUCH CLAIM SHOULD BE COMPUTED UNDER THE PROVISIONS OF 31 U.S.C. 71A. THAT STATUTE REQUIRES, IN EFFECT, THAT EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE SHALL BE FOREVER BARRED UNLESS RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. ALSO, WE SHOULD BE FURNISHED INFORMATION AS TO THE EVIDENCE AVAILABLE IN SUPPORT OF SUCH CLAIMS, THAT IS, WHETHER THE GUARDS WERE OPERATING UNDER ORDERS TO REPORT EARLY FOR THE ENTIRE PERIOD OF THEIR CLAIMS AND WHETHER RECORDS ARE AVAILABLE TO SHOW THE DAYS ON WHICH THEY ACTUALLY DID REPORT EARLY.

REFERRING TO YOUR FOURTH QUESTION, THE TIME CONSUMED FOR THE LUNCH PERIODS AND COMFORT BREAKS SHOULD NOT BE SET OFF AGAINST THE OVERTIME AS INDICATED IN OUR ANSWER TO QUESTION ONE. AS TO ADMINISTRATIVE TIME OFF WE ASSUME YOU REFER TO THE TIME WHEN A GUARD IS RELIEVED EARLY AND IS PERMITTED TO LEAVE THE BUILDING AFTER TURNING IN HIS CAP, BADGE AND REVOLVER. IF AN EXACT RECORD BE KEPT OF THE TIME A GUARD IS FREE TO DEPART THE BUILDING WE SEE NO REASON WHY SUCH TIME SHOULD NOT BE DEDUCTED. SEE B-153307, MARCH 11, 1964.