B-173899, SEP 27, 1971

B-173899, SEP 27, 1971

CIVILIAN EMPLOYEE - OVERTIME COMPENSATION - STAND-BY TIME DECISION DISALLOWING CLAIM OF MR. JOHN J. GERMAN FOR OVERTIME COMPENSATION FOR 442.5 HOURS OF STAND-BY DUTY AS EMPLOYEE OF THE DEPARTMENT OF THE ARMY. EMPLOYEE WAS REQUIRED DURING OFF DUTY HOURS COVERED BY CLAIM TO BE WITHIN HEARING DISTANCE OF HIS TELEPHONE OR TO NOTIFY A SPECIAL OPERATOR WHERE HE COULD BE REACHED AT ALL TIMES. THE FACT THAT CLAIMANT RECEIVED A MINIMUM OF ONE CALL DURING EACH DAY LISTED IN HIS CLAIM DOES NOT ALONE SATISFY THE GENERAL REQUIREMENT THAT TIME IN QUESTION BE SPENT PRIMARILY FOR THE EMPLOYER'S BENEFIT. ARMOUR & CO. V WANTOCK 323 U.S. 126 (1944). CLAIM DENIED.

TO MR. JOHN J. GERMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 19, 1971, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF JULY 13, 1971, WHICH DISALLOWED 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.

YOUR CLAIM WAS DISALLOWED SINCE THE RECORD INDICATED THAT THE DUTY WAS PERFORMED UNDER THE PROVISIONS OF DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS H 2.2, PARAGRAPH 2-9A, DATED DECEMBER 6, 1962, WHICH AUTHORIZES INSTALLATION COMMANDERS TO DESIGNATE EMPLOYEES IN EMERGENCY SITUATIONS TO PERFORM STANDBY DUTY AT HOME, THAT THE MOVEMENT OF SUCH EMPLOYEES WAS NOT UNDULY RESTRICTED, AND THERE WAS NOTHING IN THE RECORD TO SHOW THAT OVERTIME WAS OFFICIALLY ORDERED OR APPROVED, AS REQUIRED BY 5 U.S.C. 5542(A) (FORMERLY 5 U.S.C. 911), OR THAT SUCH STANDBY TIME CONSTITUTED "HOURS OF WORK." ALSO, IT WAS NOT BELIEVED THAT A MINIMUM OF ONE CALL RECEIVED DURING EACH OF THE LISTED DAYS WAS SUFFICIENT TO CLEARLY ESTABLISH THAT SUCH STANDBY TIME WAS SPENT PREDOMINANTLY FOR YOUR EMPLOYER'S BENEFIT.

YOU SUBMIT A CERTIFICATE BY MR. HENRY PRYOR, WHO WAS THE CHIEF OF THE SUPPORT DIVISION, EASTERN TRAFFIC REGION, PITTSBURGH, AT THE TIME THE ORDERS WERE ISSUED, STATING THAT THE STANDBY TIME WAS IN ADDITION TO YOUR REGULAR 40-HOUR WORKWEEK. YOU STATE THAT THE STANDBY TOURS WERE REGULARLY ASSIGNED INSTEAD OF RESULTING FROM EMERGENCY CONDITIONS, THAT YOU WERE REQUIRED TO KEEP A SPECIAL TELEPHONE OPERATOR ADVISED OF YOUR WHEREABOUTS AT ALL TIMES SO THAT YOU COULD SATISFY CALLERS AT ANY TIME, THAT YOU WERE OBLIGATED TO MAINTAIN A DUTY OFFICER LOG, PREPARE VARIOUS FORMS AND MAKE TELEPHONE CALLS TO VARIOUS CARRIERS TO CARRY OUT YOUR DUTIES. YOU ASSERT THESE FACTORS PREVENTED YOU FROM MAKING SOCIAL CALLS OR ATTENDING SOCIAL AFFAIRS SO THAT YOU HAD TO REMAIN AT YOUR POST OF DUTY (HOME) WITH YOUR TIME AND ACTIVITIES COMPLETELY UNDER THE CONTROL OF THE EMPLOYING ACTIVITY. THEREFORE, YOU BELIEVE YOU ARE ENTITLED TO OVERTIME COMPENSATION FOR 442.5 HOURS OF STANDBY DUTY WHICH CONSISTS OF 14.5 OR 15.5 HOURS OF DUTY ON REGULAR WORKING DAYS AND 24 HOURS ON WEEKEND DAYS.

IN ARMOUR & CO. V WANTOCK, 323 U.S. 126, 133 (1944), THE SUPREME COURT, IN ORDER TO DETERMINE WHAT CONSTITUTED "WORK," USED THE CRITERION OF WHETHER THE TIME IN QUESTION WAS SPENT " *** PREDOMINENTLY FOR THE EMPLOYER'S BENEFIT OR FOR THE EMPLOYEES ***" AND STATED THAT THIS WAS " *** DEPENDENT UPON ALL THE CIRCUMSTANCES OF THE CASE." IN RAPP AND HAWKINS V UNITED STATES, 167 CT. CL. 852 (1964), AND MOSS V UNITED STATES, 173 CT. CL. 1169 (1965), THE COURT OF CLAIMS CONSIDERED THE OVERTIME CLAIMS OF EMPLOYEES WHO PERFORMED STANDBY DUTY AT THEIR HOMES, OUTSIDE OF REGULAR BUSINESS HOURS AND IN EXCESS OF THE REGULAR 40-HOUR WORKWEEK. EACH CASE THE EMPLOYEE WAS REQUIRED TO BE WITHIN HEARING DISTANCE OF HIS HOME TELEPHONE IN ORDER TO RECEIVE CALLS AND TAKE APPROPRIATE ACTION. EACH OF THOSE CASES THE COURT HELD THAT WHERE AN EMPLOYEE IS ALLOWED TO STAND BY IN HIS OWN HOME WITH NO DUTIES TO PERFORM FOR HIS EMPLOYER EXCEPT TO BE AVAILABLE TO ANSWER THE TELEPHONE, THE TIME SPENT IN SUCH STANDBY CAPACITY DOES NOT AMOUNT TO "HOURS OF WORK" WITHIN THE MEANING OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 911 (NOW CODIFIED IN 5 U.S.C. 5542).

IN THE INSTANT CASE YOU WERE REQUIRED TO REMAIN WITHIN HEARING DISTANCE OF YOUR HOME TELEPHONE OR ADVISE THE SPECIAL TELEPHONE OPERATOR AT ALL TIMES WHERE YOU COULD BE REACHED IF YOU LEFT YOUR HOME. EXCEPT FOR THE ABOVE REQUIREMENT TO REMAIN WITHIN REACH OF A TELEPHONE YOU WERE FREE TO CARRY ON YOUR NORMAL OFF-DUTY ACTIVITIES.

WE DO NOT CONSIDER THE FACT THAT YOU RECEIVED A MINIMUM OF ONE CALL DURING EACH OF THE DUTY DAYS LISTED BY YOU AS SUFFICIENT TO CLEARLY ESTABLISH THAT EACH PERIOD WAS TIME SPENT PRIMARILY FOR YOUR EMPLOYER'S BENEFIT. OUR DECISION B-169113, MARCH 24, 1970, SUBMITTED IN SUPPORT OF YOUR CLAIM, DIFFERS FROM YOUR CASE INASMUCH AS THE DUTY PERFORMED IN THEIR HOMES BY THE EMPLOYEES THERE INVOLVED CONSTITUTED THEIR REGULAR DUTIES, NOT MERELY RECEIVING AND RELAYING TELEPHONE MESSAGES, AND THAT DECISION DID NOT AUTHORIZE COMPENSATION FOR THE TIME SPENT ON A STANDBY BASIS. COMPENSATION WAS AUTHORIZED FOR ONLY "THE ACTUAL TIME SPENT ON EACH ITEM OF WORK PERFORMED" WHICH WAS DETERMINED BY AN ADMINISTRATIVE ANALYSIS OF THE LOGS OF THE EMPLOYEES INVOLVED. B-141846, JUNE 30, 1970, AND B- 170432, SEPTEMBER 16, 1970, COPIES ENCLOSED.

YOU HAVE NOT SUBMITTED ANY EVIDENCE OF THE TIME SPENT ON ACTUAL WORK AND SUGGEST THAT SUCH EVIDENCE MAY BE OBTAINED FROM THE ADMINISTRATIVE OFFICE. YOU ARE ADVISED THAT THE ADMINISTRATIVE REPORT SUBMITTED BY THE DEFENSE SUPPLY AGENCY STATES THERE ARE NO OFFICIAL RECORDS TO SUBSTANTIATE YOUR CLAIM.

IN VIEW OF THE ABOVE THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.