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B-146380, OCT. 26, 1962

B-146380 Oct 26, 1962
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YOU SAY THAT ALTHOUGH EMPLOYEES WERE NEVER GIVEN PERMISSION TO EAT. NO ONE WAS EVER REPRIMANDED FOR EATING ON THE JOB AS LONG AS HE DID NOT LEAVE HIS STATION OR CAUSE INTERRUPTIONS OR INTERFERENCE WITH WORK OPERATIONS. THE ADMINISTRATIVE REPORT SPECIFICALLY DENIES THAT THE EMPLOYEES WERE REQUIRED OR EXPECTED TO BE AVAILABLE DURING THEIR LUNCH PERIODS. NAVY CIVILIAN PERSONNEL INSTRUCTIONS ARE REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY PURSUANT TO SECTION 161 OF THE REVISED STATUTES (5 U.S.C. 22) FOR THE GUIDANCE OF CIVILIAN PERSONNEL OF NAVAL ESTABLISHMENTS AND WOULD NOT BE APPLICABLE TO THE MATTER PRESENTED HERE. EACH PLATOON IS "ON" 24 HOURS AND "OFF" 24 HOURS. OVERTIME IS NOT ALLOWED FOR EATING AND SLEEPING TIME. 29 CFR 785.

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B-146380, OCT. 26, 1962

TO PRESIDENT, SECRETARY, A.F.G.E. LODGE NO. 1940:

YOUR LETTER OF SEPTEMBER 24, 1962, REQUESTS RECONSIDERATION OF THE ACTION TAKEN IN OUR DECISION OF AUGUST 13, 1962, B-146380, WHICH SUSTAINED THE DISALLOWANCE OF THE CLAIM OF MR. DAVIDS AND OTHER EMPLOYEES OF THE AGRICULTURAL RESEARCH SERVICE, DEPARTMENT OF AGRICULTURE, FOR OVERTIME COMPENSATION CLAIMED COVERING 30 MINUTES EACH WORKDAY DURING THE PERIOD MAY 31, 1959, TO MARCH 12, 1960.

IN THE LETTER OF SEPTEMBER 24 YOU SUBMITTED INFORMATION TO CLARIFY CERTAIN ASPECTS OF THE CLAIM. YOU SAY THAT ALTHOUGH EMPLOYEES WERE NEVER GIVEN PERMISSION TO EAT, NO ONE WAS EVER REPRIMANDED FOR EATING ON THE JOB AS LONG AS HE DID NOT LEAVE HIS STATION OR CAUSE INTERRUPTIONS OR INTERFERENCE WITH WORK OPERATIONS. THE ADMINISTRATIVE REPORT SPECIFICALLY DENIES THAT THE EMPLOYEES WERE REQUIRED OR EXPECTED TO BE AVAILABLE DURING THEIR LUNCH PERIODS. THAT REPORT ALSO DENIES THAT THE EMPLOYEES PERFORMED REGULAR DUTIES DURING THEIR LUNCH PERIODS WITHOUT COMPENSATION.

IN SUPPORT OF THE CLAIM FOR OVERTIME DURING THE LUNCH PERIOD YOU REFER TO NCPI 85.4-3 AND INTERPRETATIVE BULLETIN OF THE CODE OF FEDERAL REGULATIONS, TITLE 29, PART 785. BY NCPI WE ASSUME YOU MEAN THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS. NAVY CIVILIAN PERSONNEL INSTRUCTIONS ARE REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY PURSUANT TO SECTION 161 OF THE REVISED STATUTES (5 U.S.C. 22) FOR THE GUIDANCE OF CIVILIAN PERSONNEL OF NAVAL ESTABLISHMENTS AND WOULD NOT BE APPLICABLE TO THE MATTER PRESENTED HERE. MOREOVER, NCPI 85.4-3 RELATES TO "ON-CALL" EMPLOYEES OF THAT DEPARTMENT, WHO GENERALLY WORK ON A TWO-PLATOON SYSTEM. EACH PLATOON IS "ON" 24 HOURS AND "OFF" 24 HOURS, AND OVERTIME IS NOT ALLOWED FOR EATING AND SLEEPING TIME. 29 CFR 785, TO WHICH YOU ALSO REFER, DISCUSSES THE PRINCIPLES INVOLVED IN DETERMINING WHAT CONSTITUTES WORKING TIME UNDER THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED, 52 STAT. 1060. SECTION 3 (D) OF THE ACT EXCLUDES EMPLOYEES OF THE UNITED STATES GOVERNMENT FROM ITS PROVISIONS. ALSO, BONA FIDE MEAL PERIODS ARE NOT WORK TIME UNDER THAT ACT.

YOU SAY THAT PAGES 39 A, B, AND C OF THE BROCHURE YOU PRESENTED TO SUPPORT THE CLAIMS PROVE THAT THE PIADL MANAGEMENT MADE MISSTATEMENTS TO OUR OFFICE SINCE THE SCHEDULED TOURS OF DUTY SHOW THAT A TOUR OF DUTY IS 8 3/4 HOURS OF WORK TIME. THE PAPERS REFERRED TO ARE "ENGINEERING AND PLANT MANAGEMENT SCHEDULE FOR LAB SHIFT PERSONNEL" AND THERE IS NOTHING CONTAINED THEREIN TO SHOW THAT AN EMPLOYEE WAS DENIED A LUNCH PERIOD DURING HIS TOUR OF DUTY OR HAD TO WORK DURING HIS LUNCH PERIOD.

YOU REFER TO THE CASE OF 81 GUARDS AT THE PORTSMOUTH NAVAL SHIPYARD BECAUSE IT CLOSELY RESEMBLES THE CASE PRESENTED HERE. WE ASSUME YOU HAVE REFERENCE TO THE CASE OF MACK N. ALBRIGHT, ET AL. V. UNITED STATES, CT.CL. NO. 263-61; ROBERT H. BAKER, ET AL. V. UNITED STATES, CT.CL. NO. 323-61, OPINION FILED AUGUST 14, 1962. AS WE UNDERSTAND THE OPINION OF THE COMMISSIONER SO FAR AS IT RELATES TO "MEAL TIME" IT IS BASED PRIMARILY UPON THE FACT THAT THE WORK (DUTY) OF THE EMPLOYEES IN QUESTION (SECURITY GUARDS) CONTINUED UNINTERRUPTEDLY DURING THE TIME SUCH EMPLOYEES ATE THEIR MEALS. BASED ON AN EVALUATION OF THE EVIDENCE BEFORE US, WE DOUBT THAT THIS IS THE SITUATION IN THE CASE AT HAND. MOREOVER, THE ALBRIGHT OPINION IS NOT FINAL AS WE UNDERSTAND THE DEPARTMENT OF JUSTICE HAS FILED A BRIEF IN THE COURT OF CLAIMS IN THE CASE TAKING EXCEPTION TO THE COMMISSIONER'S OPINION.

CONCERNING YOUR CONTENTION THAT THE EMPLOYEES WERE EMPHATICALLY TOLD THAT THEY WOULD BE PAID FOR 8 3/4 HOURS PER DAY WHEN THEY APPLIED FOR THE POSITIONS, IT SUFFICES TO POINT OUT THAT THE SCHEDULING OF HOURS OF WORK, INCLUDING WORK IN EXCESS OF 40 HOURS, IS AN ADMINISTRATIVE MATTER. SEE 5 U.S.C. 944; ID. 911. HOWEVER, OVERTIME IS PAYABLE ONLY FOR WORK PERFORMED.

THE VALIDITY OF A CLAIM IS OF NECESSITY GOVERNED BY THE WRITTEN RECORD AS WELL AS THE APPLICABLE LAW, AND IT IS THE DUTY OF OUR OFFICE TO CONSIDER THE EVIDENCE AND DETERMINE THE FACTS IN A PARTICULAR CLAIM. WHERE THERE IS A DISPUTE BETWEEN A CLAIMANT AND AN ADMINISTRATIVE OFFICE AS TO THE FACTS, IT LONG HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS TO ACCEPT THE STATEMENT OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICE, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. WE MUST DETERMINE THE CASE UPON THE WRITTEN RECORD; THUS, A FURTHER CONFERENCE WITH REPRESENTATIVES OF OUR OFFICE WOULD NOT APPEAR TO BE WARRANTED. IN THIS CASE, WE ARE OF THE OPINION THAT THE EVIDENCE FURNISHED FAILS TO SHOW CLEARLY THAT DURING THE PERIOD INVOLVED THE EMPLOYEES DID NOT TAKE A REASONABLE PERIOD TO EAT LUNCH WITHOUT PERFORMING WORK, OR THAT THE AGENCY DENIED THEM ANY SUCH RIGHT. THE VIEWS OF THE AGENCY AND THE EMPLOYEES CLEARLY ARE IN CONFLICT, WHICH CONFLICT OF FACTS IS NOT RESOLVED BY THE RECORD. IN THE CIRCUMSTANCES, WE MUST FOLLOW THE ESTABLISHED RULE OF THE GOVERNMENT ACCOUNTING OFFICERS REQUIRING THE REJECTION OR DISALLOWANCE OF CLAIMS CONCERNING WHICH THEY HAVE A REASONABLE DOUBT. BY DOING SO, CONTROVERSIAL MATTERS ARE RESERVED FOR SCRUTINY IN THE COURTS WHERE THE FACTS MAY BE JUDICIALLY DETERMINED UNDER SWORN TESTIMONY AND COMPETENT EVIDENCE. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288; CHARLES V. UNITED STATES, 19 CT.CL. 316, 319; MORRIS DEMOLITION CORPORATION V. UNITED STATES, 99 CT.CL. 336; STANLEY A. JERMAN V. UNITED STATES, 96 CT.CL. 540; CHARLES A. BLUME V. UNITED STATES, 81 CT.CL. 210.

THEREFORE, IN VIEW OF THE FOREGOING, WE MUST SUSTAIN THE ACTION TAKEN IN OUR DECISION OF AUGUST 13, 1962, B-146380, TO YOU.

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