B-173899, NOV 24, 1971

B-173899, NOV 24, 1971

CIVILIAN EMPLOYEE - STANDBY DUTY AS OVERTIME - JUDICIAL REMEDY DECISION SUSTAINING THE PREVIOUS DENIAL OF A CLAIM BY JOHN J. GERMAN, JR., FOR OVERTIME COMPENSATION FOR STANDBY DUTY PERFORMED AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY. STANDBY DUTY AT HOME OUTSIDE THE EMPLOYEE'S REGULAR WORK IS NOT COMPENSABLE UNLESS THE TIME IS SPENT PREDOMINATELY FOR THE EMPLOYER'S BENEFIT. FOR SUCH WORK TO BE COMPENSABLE, IT IS NECESSARY FOR THE ACTUAL TIME SPENT ON SUCH WORK TO BE ASCERTAINED AND RECORDED. WHERE A CLAIM IS OF DOUBTFUL VALIDITY DUE TO A LACK OF EVIDENCE, SUCH AS HERE, IT IS GAO'S PRACTICE TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS UNDER THE PRINCIPLE OF LONGWILL V UNITED STATES, 17 CT. CLS. 288.

TO MR. JOHN J. GERMAN, JR.:

PURSUANT TO YOUR LETTER OF OCTOBER 4, 1971, AND A REQUEST MADE BY SENATOR J. GLENN BEALL, JR., ON YOUR BEHALF, WE HAVE REVIEWED OUR DECISION OF SEPTEMBER 27, 1971, B-173899, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM FOR OVERTIME COMPENSATION FOR 442.5 HOURS OF STANDBY DUTY AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, EASTERN TRAFFIC REGION, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE, PITTSBURGH, PENNSYLVANIA, DURING THE PERIOD JUNE 2, 1964, THROUGH DECEMBER 16, 1965.

THE FACTS AND REASONS FOR THE DISALLOWANCE OF OUR CLAIM WERE STATED IN THE CITED DECISION AND WILL NOT BE REPEATED HERE. YOU REQUEST RECONSIDERATION BECAUSE YOU DISAGREE WITH OUR CONCLUSION THAT YOUR MOVEMENT WAS NOT UNDULY RESTRICTED. YOU ALSO BELIEVE THE FACT THAT YOU WERE REQUIRED TO PROCESS AT LEAST ONE TYPICAL TRAFFIC MANAGEMENT FUNCTION WAS SUFFICIENT TO MAKE EACH TOUR OF STANDBY DUTY (14.5 OR 15.5 HOURS OF DUTY ON REGULAR WORKING DAYS AND 24 HOURS ON WEEKEND DAYS) COMPENSABLE AT OVERTIME RATES, AND YOU ASSERT THAT THE FACT THAT YOU WERE OFFICIALLY ORDERED TO PERFORM STANDBY TOURS OF DUTY OUTSIDE OF YOUR NORMAL WORKWEEK IS CONCLUSIVE EVIDENCE THAT THE HOURS COVERED BY SUCH TOURS ARE COMPENSABLE AS OVERTIME.

STANDBY DUTY AT HOME OUTSIDE THE EMPLOYEE'S REGULAR WORK IS NOT COMPENSABLE UNLESS THE TIME IS SPENT PREDOMINATELY FOR THE EMPLOYER'S BENEFIT. B-141846, JUNE 30, 1970, AND COURT CASES CITED THEREIN. IN THE INSTANT CASE THE TIME SPENT ON THE STANDBY TOURS WAS NOT SPENT PREDOMINANTLY FOR THE BENEFIT OF THE GOVERNMENT SINCE, EXCEPT FOR THE REQUIREMENT THAT YOU REMAIN WITHIN HEARING DISTANCE OF A TELEPHONE, YOU WERE FREE TO EAT, SLEEP, READ, ENTERTAIN FRIENDS, AND OTHERWISE ENJOY YOUR NORMAL PURSUITS WHILE ACTING AS A DUTY OFFICER.

AS POINTED OUT BY YOU, WE HELD IN DECISION B-169113, MARCH 24, 1970, THAT WORK PERFORMED BY AN EMPLOYEE AT HOME BEYOND HIS REGULAR TOUR OF DUTY MAY BE COMPENSABLE AS OVERTIME. HOWEVER, FOR SUCH WORK TO BE COMPENSABLE IT WOULD BE NECESSARY FOR THE ACTUAL TIME SPENT ON SUCH WORK TO BE ASCERTAINED AND RECORDED. IN THE DECISION CITED THE COMPENSABLE TIME WAS DETERMINED ON THE BASIS OF TIME WORKED AS DISCLOSED BY DUTY OFFICER LOGS AND WORKSHEETS AND NOT THE OVERALL HOURS IN THE TOURS OF STANDBY ASSIGNMENTS. IN THE INSTANT CASE THERE IS NO EVIDENCE OF THE TIME ACTUALLY PERFORMED ON WORK, EITHER FROM OFFICIAL RECORDS OR FROM PERSONAL RECORDS MAINTAINED BY YOU. THE CERTIFICATE BY MR. HENRY PRYOR, WHO WAS CHIEF OF THE SUPPORT DIVISION, EASTERN TRAFFIC REGION, PITTSBURGH, PENNSYLVANIA, REGARDING THE ORDERS ASSIGNING YOU AS A DUTY OFFICER, DO NOT CONSTITUTE AUTHORITY FOR PAYMENT OF OVERTIME SINCE IT DOES NOT SHOW THAT OVERTIME WAS ACTUALLY PERFORMED OR, IF OVERTIME WAS PERFORMED, THE THE AMOUNT OF SUCH OVERTIME.

WHERE A CLAIM IS OF DOUBTFUL VALIDITY DUE TO LACK OF SUITABLE EVIDENCE, SUCH AS HERE, IT IS OUR PRACTICE TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS UNDER THE PRINCIPLES OF LONGWILL V UNITED STATES, 17 CT. CL. 288.

IN VIEW OF THE ABOVE THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.