B-153540, MAY 28, 1964

B-153540, MAY 28, 1964

TO MR. ROBERT B. ELLIOTT:

WE REFER TO YOUR LETTERS OF APRIL 10 AND 30, 1964, BY WHICH YOU REQUEST THAT WE RECONSIDER OUR DECISION OF MARCH 24, 1964, WHICH AFFIRMED OUR CLAIMS DIVISION SETTLEMENT OF JANUARY 28, 1964, DISALLOWING YOUR CLAIM FOR OVERTIME COMPENSATION FOR ONE-HALF HOUR IN LIEU OF LUNCH BREAK, FOR EACH DAY YOU WORKED BETWEEN JULY 1960 AND SEPTEMBER 9, 1963, AS AN EMPLOYEE OF THE 1501ST AIR TERMINAL SQUADRON, TRAVIS AIR FORCE BASE, CALIFORNIA.

YOUR CLAIM WAS DISALLOWED AND THE DISALLOWANCE WAS AFFIRMED PRIMARILY BECAUSE THE DEPARTMENT OF THE AIR FORCE REPORTED THAT YOU WERE ALLOWED A FULL ONE-HALF HOUR LUNCH BREAK BETWEEN 11 A.M. AND 1 P.M. EACH DAY ALTHOUGH THE SPECIFIC ONE-HALF HOUR YOU WERE FREE DURING THAT PERIOD WAS NOT FIXED, AND THAT YOUR IMMEDIATE SUPERVISOR DID NOT HAVE AUTHORITY TO DIRECT YOU TO FOREGO YOUR LUNCH BREAK AND THUS WORK OVERTIME.

YOU CONTEND THAT YOU WERE REQUIRED TO FOREGO YOUR FULL ONE-HALF HOUR LUNCH BREAK ON MANY OCCASIONS AND THAT ON OTHER OCCASIONS YOU WERE REQUIRED TO REMAIN AT OR NEAR YOUR DUTY STATION AND ALLOWED ONLY 20 MINUTES IN WHICH TO EAT YOUR LUNCH. TO SUPPORT THAT CONTENTION YOU ENCLOSED WITH YOUR LETTER OF APRIL 30 A COPY OF A GRIEVANCE SUBMITTED TO THE COMMANDER OF THE 1501ST AIR TERMINAL SQUADRON BY YOU AND SEVERAL OF YOUR COWORKERS IN WHICH IT IS ASSERTED THAT ALL THE EMPLOYEES PARTICIPATING IN THE GRIEVANCE WORKED AN EXTRA 30 MINUTES EACH DAY. YOU ALSO CONTEND THAT YOUR IMMEDIATE SUPERVISOR HAD AUTHORITY TO DIRECT YOU TO PERFORM OVERTIME WORK. TO SUPPORT THAT CONTENTION YOU HAVE SUBMITTED A COPY OF THE TRAVIS AIR FORCE BASE CIVILIAN EMPLOYEE BULLETIN, VOLUME III, NUMBER 4, APRIL 1964, CONTAINING AN ARTICLE TO THE EFFECT THAT AN EMPLOYEE SHOULD PERFORM ANY REASONABLE TASK ASSIGNED BY HIS SUPERVISOR EVEN THOUGH SUCH TASK WAS NOT SPECIFICALLY INCLUDED IN HIS JOB DESCRIPTION, AND YOU ALSO SUBMIT A COPY OF YOUR JOB DESCRIPTION WHICH AMONG OTHER THINGS REQUIRES THAT YOU PERFORM YOUR DUTIES IN ACCORDANCE WITH EXISTING REGULATIONS, PROCEDURES, AND DIRECTIVES. YOU REFER TO THE DIRECTIVE OF THE COMMANDER OF THE 1501ST AIR TERMINAL SQUADRON DATED SEPTEMBER 3, 1963, A COPY OF WHICH YOU HAD PREVIOUSLY SUBMITTED. THAT DIRECTIVE PROVIDES IN PART:

"IT IS THE DUTY OF THE FIRST LEVEL SUPERVISOR, DUTY OFFICER OR SHIFT CHIEF TO INSTRUCT EACH CIVILIAN DAILY WHEN HE OR SHE WILL BE PROVIDED A THIRTY MINUTE LUNCH BREAK. IN AREAS WHERE THE OPERATION PERMITS, THE TIME FOR THE THIRTY MINUTE LUNCH BREAK WILL BE ON A PREDETERMINED SCHEDULED BASIS. THE REQUIREMENTS OF THE OPERATION WILL TAKE PRECEDENCE IN THE EVENT THERE IS A CONFLICT OF TIMES AND REQUIREMENTS.'

WE NOTE THAT THAT DIRECTIVE WAS ISSUED SUBSEQUENT TO THE PERIOD OF YOUR CLAIM AND THAT IT DEALS ONLY WITH THE TIME AT WHICH LUNCH BREAKS WILL BE TAKEN AND NOT WITH THE PERFORMANCE OF OVERTIME WORK.

ON THE OTHER HAND, YOUR EMPLOYING AGENCY HAS REPORTED:

"* * * IT HAS BEEN THE POLICY OF THE ORGANIZATION WHERE MR. ELLIOTT IS EMPLOYED TO AUTHORIZE A ONE-HALF HOUR LUNCH PERIOD. IF THE OCCASION HAS EVER ARISEN WHERE AN EMPLOYEE DID NOT RECEIVE A FULL ONE-HALF HOUR AWAY FROM HIS WORK AREA FOR LUNCH, IT DID NOT OCCUR WITH THE AWARENESS OR CONCURRENCE OF MANAGEMENT. * * *"

IN CASES WHERE THERE IS A CONFLICT IN THE FACTS AS PRESENTED BY THE CLAIMANT AND THE FACTS AS REPORTED BY THE AGENCY CONCERNED WE MUST PRESUME THE AGENCY REPORT TO BE CORRECT UNLESS THE CLAIMANT HAS SUBMITTED EVIDENCE SUFFICIENT TO OVERCOME SUCH PRESUMPTION. WE DO NOT REGARD THE PRESENTED EVIDENCE AS SUFFICIENT FOR THAT PURPOSE, THEREFORE, OUR CLAIMS DIVISION SETTLEMENT OF JANUARY 28, 1964, MUST AGAIN BE AFFIRMED AND YOUR CLAIM DENIED.

YOU ARE, OF COURSE, AT LIBERTY TO PURSUE YOUR CLAIM BY BRINGING SUIT AGAINST THE UNITED STATES IN THE COURT OF CLAIMS AS PROVIDED BY 28 U.S.C. 1346, 1491.