B-153307, MAR. 11, 1964

B-153307, MAR. 11, 1964

TO MR. D. G. RAY, DISBURSING OFFICER, U.S. NAVAL ORDNANCE LABORATORY:

WE REFER TO YOUR LETTER OF JANUARY 3, 1964, YOUR REFERENCE DM 6:RWT:MRW, BY WHICH YOU REQUEST OUR DECISION WHETHER YOU MAY PAY ADDITIONAL OVERTIME COMPENSATION TO MR. RAYMOND C. DEVER, A CIVILIAN GUARD AT THE U.S. NAVAL ORDNANCE LABORATORY, WHITE OAK, SILVER SPRING, MARYLAND, BECAUSE HE WAS REQUIRED TO REPORT FOR WORK 30 MINUTES BEFORE THE BEGINNING OF HIS 8-HOUR WORKDAY. THE QUESTION ARISES UNDER THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF ALBRIGHT V. UNITED STATES, CT.CL.NO. 263-61, APRIL 5, 1963.

YOU ENCLOSED A VOUCHER FOR PAYMENT OF OVERTIME COMPENSATION TO MR. DEVER ON THE BASIS OF 15 MINUTES FOR EACH WORKDAY FROM THE DAY HE ENTERED ON DUTY IN NOVEMBER 1950 THROUGH APRIL 15, 1963. YOU SAY THE VOUCHER SUBMITTED REPRESENTS A CASE TYPICAL OF THE CLAIMS OF 45 GUARDS AT THE U.S. NAVAL ORDNANCE LABORATORY AND THAT OUR DECISION IN MR. DEVER'S CASE WILL BE USED AS THE BASIS FOR DETERMINING THE AMOUNT PAYABLE TO THE OTHER CLAIMANTS.

U.S. NAVAL ORDNANCE LABORATORY, WHITE OAK, POST GENERAL ORDER NO. 1, JANUARY 1, 1961, PERTAINING TO THE CIVILIAN GUARD FORCE, PROVIDES IN SECTION 3C:

"C. WATCH HOURS. HEADED BY A SUPERVISORY OFFICER, EACH WATCH CONSISTS OF A SPECIFIED NUMBER OF PRIVATES AND IS BROKEN DOWN INTO EIGHT-HOUR PERIODS OF WORK, DAILY AND INCLUDING WEEKENDS AND HOLIDAYS. THE FIRST WATCH IS ON DUTY FROM 2300 TO 0700, THE SECOND WATCH FROM 0700 TO 1500, AND THE THIRD WATCH FROM 1500 TO 2300. ALL GUARD PERSONNEL SHALL REPORT 30 MINUTES PRIOR TO WATCH-BREAK TIME. GUARDS ARE TO BE PROCESSED AND ON THEIR POST ASSIGNMENTS PROMPTLY AT WATCH-BREAK TIME. THE 30-MINUTES PERIOD OF TIME WILL BE DEVOTED TO STANDING ROLL CALL, RECEIVING SPECIAL INSTRUCTIONS, DRAWING EQUIPMENT, AND FOR PURPOSE OF ATTENDING TO OTHER MATTERS INVOLVING PROPER PREPARATION FOR DUTY ASSIGNMENT.'

IT APPEARS THAT YOU HAVE LIMITED THE PROPOSED PAYMENT OF OVERTIME COMPENSATION ON THE VOUCHER ENCLOSED TO 15 MINUTES PER DAY BECAUSE GUARDS WERE ALLOWED LUNCH AND COMFORT BREAKS. POST GENERAL ORDER OF JANUARY 1, 1961, CONTAINS THE FOLLOWING REGULATION WITH RESPECT TO BREAKS DURING WATCHES IN PARAGRAPH 4 (B) (14):

"/14) BREAKS FOR COMFORT RELIEFS, LUNCH PERIODS, ETC., DURING DUTY ASSIGNMENTS WILL BE ARRANGED BY THE WATCH OFFICER ON AN EQUITABLE BASIS. THOSE ABUSING THE PRIVILEGE WILL BE CALLED TO ACCOUNT AS APPROPRIATE AND IN ACCORDANCE WITH ESTABLISHED POLICY AND PROCEDURE.'

LIEUTENANT R. H. GEIMAN OF THE GUARD FORCE REPORTS THAT GUARDS ASSIGNED TO THE SECOND WATCH (7 A.M. TO 3 P.M.) WERE ALLOWED A 20 MINUTE LUNCH BREAK EACH WEEKDAY DURING THE PERIOD 1958 THROUGH 1961 AND THAT THEY HAVE BEEN ALLOWED A 30-MINUTE LUNCH BREAK EACH WEEKDAY BEGINNING IN 1962. DURING THOSE LUNCH BREAKS THE GUARDS WERE RELIEVED FROM THEIR POSTS BUT WERE NOT ALLOWED TO LEAVE THE BASE. ON SATURDAYS, SUNDAYS AND HOLIDAYS GUARDS ASSIGNED TO THE SECOND WATCH ATE AT THEIR POSTS. WE ASSUME THEY WERE NOT RELIEVED FOR A LUNCH BREAK.

LIEUTENANT SAMUEL F. SMITH SAYS THAT GUARDS OF THE THIRD WATCH (3 P.M. TO 11 P.M.) WERE REQUIRED TO EAT AT THEIR POST UNTIL APRIL 15, 1963. HERE ALSO WE ASSUME THEY WERE NOT RELIEVED FOR LUNCH BREAKS PRIOR TO APRIL 15, 1963. A SIMILAR PRACTICE SEEMS TO HAVE BEEN IN FORCE FOR GUARDS ASSIGNED TO THE FIRST WATCH (11 P.M. TO 7 A.M.).

IN THE ALBRIGHT CASE THE SECURITY GUARDS CONCERNED WERE ORDERED TO REPORT 15 MINUTES EARLY AND THEY WERE ALLOWED OVERTIME COMPENSATION FOR 15 MINUTES EACH DAY. THE GOVERNMENT ARGUES THAT THE REQUIREMENT OF EARLY REPORTING WAS OFFSET BY THE FACT THAT THE GUARDS WERE ALLOWED TIME FOR LUNCH DURING THEIR ASSIGNED 8-HOUR SHIFTS. THE COURT DID NOT ACCEPT THAT ARGUMENT BECAUSE THE GUARDS CONCERNED WERE NOT NORMALLY RELIEVED FOR LUNCH BUT WERE USUALLY REQUIRED TO EAT WHILE AT THEIR GUARD POSTS AND BECAUSE THE AMOUNT OF TIME ANY PARTICULAR GUARD TOOK OFF FOR MEALS WAS NOT SHOWN. THE COURT POINTED OUT THAT UNDER THE SCHEDULE OF THREE 8-HOUR SHIFTS PER 24-HOUR PERIOD THE GUARDS DID NOT AND WOULD NOT, UNLESS RELIEVED, HAVE AN OFF-DUTY PERIOD DUE TO THE NATURE OF THEIR EMPLOYMENT AND THE REQUIREMENT OF MANAGEMENT FOR MAINTAINING CONSTANT SURVEILLANCE.

APPLYING THE DECISION IN THAT CASE TO THE FACTS PRESENTED IT APPEARS THAT MR. DEVER AND OTHER SIMILARLY SITUATED GUARDS ARE ENTITLED TO CREDIT FOR 30 MINUTES OVERTIME ON ACCOUNT OF THE EARLY REPORTING REQUIREMENT OF POST GENERAL ORDER OF JANUARY 1, 1961, ON EACH DAY THEY WERE NOT RELIEVED FROM DUTY FOR A LUNCH BREAK. THOSE INSTANCES IN WHICH GUARDS WERE RELIEVED FOR LUNCH BREAKS THE AMOUNT OF TIME ALLOWED FOR SUCH BREAK SHOULD BE SET OFF AGAINST OVERTIME CREDITED. ADMINISTRATIVELY AUTHORIZED "COMFORT BREAKS" ARE TO BE REGARDED AS DUTY TIME AND THEREFORE SHOULD NOT BE SET OFF AGAINST OVERTIME; ALSO, IN THE ABSENCE OF A CLEAR ADMINISTRATIVE PRACTICE OF EXCUSING EMPLOYEES EARLY OR SPECIFIC EVIDENCE IN PARTICULAR CASES AS TO EXACT TIME OF EARLY ARRIVAL AND DEPARTURE, THE FACT THAT THE GUARDS WERE OFTEN RELIEVED FROM THEIR POSTS 10 TO 15 MINUTES BEFORE THE END OF THEIR WATCH WOULD NOT BE FOR CONSIDERATION FOR SETOFF PURPOSES.

REGARDING PAYMENT FOR OVERTIME WORKED PRIOR TO JANUARY 1, 1961, THE EFFECTIVE DATE FORMAL WRITTEN ORDERS REQUIRING THE GUARDS TO REPORT 30 MINUTES EARLY, WE DO NOT CONSIDER THE EVIDENCE PRESENTED SUFFICIENT TO ESTABLISH THAT THE GUARDS WERE REQUIRED TO REPORT 30 MINUTES EARLY FOR ANY PERIOD PRIOR TO THAT DATE. THEREFORE, ON THE PRESENT RECORD YOU ARE NOT AUTHORIZED TO PAY ANY OVERTIME COMPENSATION COVERING ANY PERIOD PRIOR TO JANUARY 1, 1961.

THE STATEMENT OF ROBERT H. GEIMAN DATED FEBRUARY 25, 1964, WHICH WAS FURNISHED INFORMALLY AT OUR REQUEST, CONTAINS THE FOLLOWING:

"THE PRACTICE OF REPORTING 30 MINUTES EARLY IN EFFECT IN 1949. THIS WAS APPARENTLY FROM VERBAL ORDERS OF THE SECURITY OFFICER. WRITTEN ORDERS WERE NOT PUBLISHED UNTIL 1960.'

THAT STATEMENT IS INDEFINITE AND DOES NOT INDICATE THAT THE PERSON SIGNING IT WAS IN A POSITION TO KNOW WHETHER THE EARLY REPORTING WAS ACTUALLY ORDERED. IT WOULD SEEM THAT STATEMENTS COULD BE FURNISHED FROM SECURITY OFFICERS OR CIVILIAN GUARD OFFICERS STATING POSITIVELY WHETHER THE EARLY REPORTING DURING THE PERIOD PRIOR TO JANUARY 1, 1961, WAS IN ACCORDANCE WITH ORAL ORDERS FROM RESPONSIBLE OFFICIALS. ALSO, IN THE ABSENCE OF TIME AND ATTENDANCE REPORTS CONTAINING THE DAILY RECORD OF THE TIME EACH EMPLOYEE CONCERNED REPORTED FOR DUTY, WE CONSIDER IT NECESSARY THAT EACH EMPLOYEE CLAIMING OVERTIME COMPENSATION FOR EARLY REPORTING SHOULD FURNISH A STATEMENT THAT HE IN FACT DID REPORT EARLY ON THE DAYS FOR WHICH HE CLAIMS OVERTIME COMPENSATION. THAT STATEMENT SHOULD BE CORROBORATED BY THE STATEMENTS OF AT LEAST TWO OTHER EMPLOYEES WHO FROM PERSONAL KNOWLEDGE CAN ATTEST TO THE FACT THAT THE CLAIMANT DID GENERALLY REPORT EARLY AS CLAIMED.

WE NOTE THAT MR. DEVER AND THE OTHER 44 CIVILIAN GUARDS WHOSE CLAIMS WERE SUBMITTED TO THE CLAIMS DIVISION OF OUR OFFICE BY THE COMMANDER, U.S. NAVAL ORDNANCE LABORATORY, WHITE OAK, WOULD NOT BE ENTITLED TO OVERTIME COMPENSATION FOR OVERTIME WORKED BEFORE JULY 22, 1953, THAT IS, 10 YEARS PRIOR TO THE DATE THEIR CLAIMS WERE RECEIVED AND RECORDED IN OUR OFFICE, EVEN UPON THE PRESENTATION OF SUPPORTING EVIDENCE THAT OVERTIME WAS ORDERED AND WORKED BEFORE THAT DATE. SEE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A.

YOU ARE AUTHORIZED TO PAY MR. DEVER OVERTIME COMPENSATION ONLY IN ACCORDANCE WITH THE ABOVE DECISION. THE VOUCHER, WHICH IS RETURNED HEREWITH, SHOULD BE APPROPRIATELY MODIFIED. SETTLEMENT OF THE 44 OTHER CLAIMS MAY BE MADE ON THE SAME BASIS. IF EVIDENCE ESTABLISHING THAT THE CLAIMANTS PERFORMED OVERTIME BY REASON OF THEIR BEING REQUIRED TO REPORT EARLY PRIOR TO JANUARY 1, 1961, IS SUBMITTED THE CLAIMS, OR A REPRESENTATIVE CLAIM, WITH THE NECESSARY SUPPORTING EVIDENCE SHOULD BE FORWARDED FOR OUR FURTHER CONSIDERATION.

CONGRESSMAN RICHARD E. LANKFORD IS INTERESTED IN THE CLAIM OF MR. LINDSAY F. MORRIS, JR. ..END :