B-158549, MAR. 11, 1966

B-158549, MAR. 11, 1966

TO NATIONAL PRESIDENT AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES:

WE REFER TO YOUR LETTER OF JANUARY 28, 1966, YOUR REFERENCE 4F/L 1733, CONCERNING THE CLAIMS OF 50 CIVILIAN GUARD EMPLOYEES OF THE GENERAL SERVICES ADMINISTRATION, REGION 3, FOR ADDITIONAL OVERTIME COMPENSATION WHICH THEY BELIEVE IS DUE THEM FOR REPORTING TO WORK EACH DAY BEFORE THE TIME THEIR TOUR OF DUTY WAS OFFICIALLY SCHEDULED TO BEGIN.

THIRTY-NINE OF THE SUBJECT CLAIMS WERE CONSIDERED BY THE CLAIMS DIVISION OF OUR OFFICE AND DISALLOWED BY SETTLEMENTS DATED DECEMBER 7, 1965. YOU REQUEST THAT WE RECONSIDER THE ACTION TAKEN WITH REGARD TO THOSE CLAIMS AND THAT WE ALSO CONSIDER THE SIMILAR CLAIMS OF 11 OTHER GUARDS WHOSE SIGNED CLAIMS AND POWERS OF ATTORNEY AUTHORIZING YOUR ORGANIZATION TO ACT IN THIS MATTER WERE ENCLOSED WITH YOUR LETTER OF JANUARY 28.

ALL 50 CLAIMANTS WORK OR HAVE WORKED AS SECURITY GUARDS IN BUILDINGS WHICH ARE UNDER THE CONTROL OF THE GENERAL SERVICES ADMINISTRATION IN THE WASHINGTON, D.C. AREA. HOWEVER, THE WORKING CONDITIONS AND REQUIREMENTS APPLICABLE TO THE INDIVIDUAL GUARDS ARE DIFFERENT DEPENDING UPON THE ORGANIZATION, BUILDING AND GUARD POST TO WHICH SUCH GUARD IS ASSIGNED AND THE CLAIMS ARE BASED ON BROAD WORK REQUIREMENTS WHICH ARE APPLICABLE TO ALL GENERAL SERVICES ADMINISTRATION GUARDS AND NOT UPON THE WORK AND EARLY REPORTING REQUIREMENTS IN FORCE FOR EACH GUARD INDIVIDUALLY.

THE PRIMARY WRITTEN POLICY STATEMENT ON WHICH YOU RELY IN SUPPORT OF THE CLAIMS IS CONTAINED IN THE HANDBOOK FOR GUARDS, ISSUED BY THE BUILDINGS MANAGEMENT DIVISION, PUBLIC BUILDINGS SERVICE, GENERAL SERVICES ADMINISTRATION, ON APRIL 2, 1952, AND SINCE SUPERSEDED, WHICH PROVIDED IN SECTION 206:

"HOURS OF DUTY.--- (A) EXCEPT IN EMERGENCY, EIGHT HOURS CONSTITUTE A REGULAR TOUR OF DUTY. THE HOURS OF DUTY FOR EACH RELIEF (UNLESS OTHERWISE PRESCRIBED) ARE:

FIRST RELIEF --- FROM 12 MIDNIGHT TO 8 A.M.

SECOND RELIEF --- FROM 8 A.M. TO 4 P.M.

THIRD RELIEF --- FROM 4 P.M. TO 12 MIDNIGHT

"/B) GUARDS MUST REPORT TO THEIR ASSIGNED POSTS IN UNIFORM, IN TIME TO RELIEVE THE GUARDS WHOSE TOURS OF DUTY ARE JUST ENDING. SINCE GUARDING REQUIRES AROUND-THE-CLOCK SERVICE, A GUARD WHO IS TO BE RELIEVED BY ANOTHER MUST STAY AT HIS POST UNTIL HIS RELIEF ARRIVES.

"/C) GUARD OFFICERS ARE EXPECTED TO COME ON DUTY IN SUFFICIENT TIME BEFORE THEIR RELIEF STARTS TO INSPECT THE GUARDS OF THE RELIEF, MAKE ANY NECESSARY REASSIGNMENTS OF DUTY, AND CARRY OUT SPECIAL ORDERS.'

YOU ALSO QUOTE PARAGRAPH 17 OF THE CURRENT HANDBOOK FOR GUARDS, PBS P 5930.1A, AUGUST 12, 1963, IN SUPPORT OF THE CLAIMS AS FOLLOWS:

"THE DUTIES OF A GUARD ARE MANY AND DIVERSE. SOME ARE DICTATED BY DIRECTIVES, SOME BY CUSTOM, AND SOME BY COURTESY AND THE EXERCISE OF REASON. WHATEVER THE CAUSES FOR THE EXISTENCE OF THESE DUTIES, THE GUARD MUST ALWAYS REMEMBER THAT AS AN EMPLOYEE OF GSA HE MUST PERFORM THEM IN KEEPING WITH THE OBJECTIVES OF PROVIDING PROTECTION. * * *"

YOUR GENERAL STATEMENT IN SUPPORT OF YOUR CONTENTION THAT GUARDS WORKING FOR REGION 3 MUST WORK AT LEAST 30 MINUTES IN EXCESS OF THEIR EIGHT-HOUR TOUR EACH WORKDAY IS AS FOLLOWS:

"IT IS HEREBY AGAIN CONTENDED THAT DURING THE PERIODS INVOLVED IN THESE CLAIMS, IT IS REQUIRED BY VERBAL AND WRITTEN AUTHORITY THAT THESE GUARDS, MEMBERS OF THE SPECIAL POLICE FORCE, ARE REQUIRED TO REPORT FOR DUTY FAR ENOUGH IN ADVANCE OF THE OFFICIAL STARTING TIME TO DRESS IN UNIFORM, DRAW WEAPONS AND EQUIPMENT, RECEIVE AN ASSIGNMENT AND REPORT FOR DUTY. IN MANY INSTANCES THEIR DUTY POST TO WHICH THEY MUST REPORT IS MANY BLOCKS AWAY FROM THE ORIGINAL STARTING POINT. THE REVERSE OF THIS PROCEDURE OCCURS AT THE CLOSE OF THE TOUR OF DUTY. THEY MUST WAIT AT THEIR POSTS UNTIL RELIVED BY THE ONCOMING GUARD OF THE SUCCEEDING SHIFT AND THEN TURN IN THEIR WEAPONS AND UNIFORMS, ETC. AT POINTS OFTEN BLOCKS AWAY. THIS EXTRA TIME REQUIRED OF THEM TOTALS THIRTY (30) MINUTES OR MORE EACH DAY. THEY ARE NOT COMPENSATED FOR THIS OVERTIME DUTY. IT IS ALSO CONTENDED THAT IT IS REQUIRED THAT THESE MEMBERS OF THE SPECIAL POLICE FORCE BE IN FULL UNIFORM EQUIPPED WITH REVOLVERS AND BADGES AND ARE NOT AUTHORIZED TO TAKE SUCH UNIFORMS OR EQUIPMENT FROM THE PREMISES.

"IN MR. SESSO'S DETERMINATIONS OF DECEMBER 7, 1965, HE STATES THAT DECISION RENDERED IN MACK N. ALBRIGHT, ET AL. V. THE UNITED STATES, CT. CL. NO. 263-61, WAS MADE ON THE BASIS THAT REGULATIONS WERE ISSUED BY THE SECURITY OFFICE OF THE NORFOLK NAVAL SHIPYARD REQUIRING SUCH OVERTIME. CONTEND THAT ORDERS WERE AND ARE NOW ISSUED TO EACH SPECIAL POLICE AND GUARD BY THE GENERAL SERVICES ADMINISTRATION, WASHINGTON, D.C. AT THE BEGINNING OF HIS EMPLOYMENT. THESE ORDERS ARE WRITTEN IN PERMANENT RULES AND REGULATIONS SUCH AS THE GENERAL SERVICES ADMINISTRATION'S HANDBOOK FOR GUARDS AND IN MEMORANDUMS, NOTICES AND INFORMATIONAL SHEETS ISSUED BY THE SPECIAL POLICE CHIEF (CHIEF OF THE CENTRAL PROTECTION FORCE).

"THE ABOVE REFERRED TO ORDERS ARE ALSO GIVEN VERBALLY TO ALL GUARDS AND SPECIAL POLICE NOW, AS WELL AS IN THE PAST. MOREOVER THESE ORDERS ARE ALSO IMPLIED SINCE A GUARD MUST REPORT IN SUFFICIENT TIME TO RELIEVE ANOTHER GUARD IF HE IS TO START ON TIME (SHIFT TIME) AND BE RELIEVED ON TIME. IN ADDITION THESE ORDERS ARE IMPLIED BY REASON OF PRACTICE AND PRECEDENT. ALL SPECIAL POLICE NOW, AS WELL AS IN THE PAST, REPORT AT LEAST 15 TO 20 MINUTES AHEAD OF THE POSTED OFFICIAL TIME IN ORDER THAT THE GUARDS THEY ARE RELIEVING MAY LEAVE HIS POST OF DUTY AT THE "QUITTING" TIME.'

YOU HAVE FURNISHED NO ORDER OR REGULATION WHICH SPECIFICALLY REQUIRES THE CLAIMANT GUARDS TO REPORT BEFORE THE BEGINNING OF THEIR TOURS OF DUTY.

THE LETTER TO YOU FROM THE REGIONAL ADMINISTRATOR, REGION 3, GENERAL SERVICES ADMINISTRATION, DATED APRIL 8, 1965, WHICH YOU ENCLOSED WITH YOUR LETTER TO OUR OFFICE OF NOVEMBER 2, 1965, INDICATES THAT WORKING CONDITIONS VARIED BETWEEN THE DIFFERENT UNITS OF THE GUARD FORCE TO WHICH THE CLAIMANTS ARE ASSIGNED; THAT GUARDS WERE, IN SOME CASES AT LEAST, PERMITTED TO WEAR THEIR UNIFORMS HOME; AND THAT THERE WERE NO SPECIFIC EARLY REPORTING REQUIREMENTS IN FORCE FOR GUARDS EMPLOYED IN REGION 3. MUST ACCEPT THE FACTS AS REPORTED BY THE GOVERNMENT AGENCY CONCERNED WHEN SUCH FACTS DO NOT AGREE WITH THE FACTS ALLEGED BY THE CLAIMANT UNLESS THE CLAIMANT FURNISHES EVIDENCE WHICH CLEARLY SHOWS THE FACTS SUBMITTED BY THE GOVERNMENT AGENCY TO BE IN ERROR. THE EVIDENCE YOU HAVE PRESENTED DOES NOT SHOW THE FACTS AS REPORTED BY THE GENERAL SERVICES ADMINISTRATION TO BE IN ERROR; THEREFORE, THE DETERMINATION OF THE CLAIMS DIVISION MUST BE SUSTAINED.

FURTHERMORE, WITH REGARD TO THE ENTITLEMENT OF CIVILIAN GUARDS TO OVERTIME COMPENSATION FOR EARLY REPORTING GENERALLY, WE DIRECT YOUR ATTENTION TO THE COURT OF CLAIMS DECISION IN BANTOM V. UNITED STATES, 165 CT.CL. 312 (1964), IN WHICH THE COURT HELD THAT A GUARD IS NOT ENTITLED TO OVERTIME COMPENSATION FOR THE SHORT PERIOD OF TIME IT TAKES HIM TO DRAW A WEAPON PRIOR TO THE BEGINNING OF HIS OFFICIAL WORKDAY AND THAT A GUARD IS NOT ENTITLED TO COMPENSATION FOR HIS LUNCH BREAK MERELY BECAUSE HE MUST REMAIN ON CALL DURING SUCH PERIOD. WE NOTE THAT THE GUARDS IN REGION 3 ARE NOT REQUIRED TO REPORT AT ANY SPECIFIC TIME IN ADVANCE OF THE BEGINNING OF THEIR SHIFTS BUT ARE MERELY REQUIRED TO BE READY TO ASSUME THEIR GUARD DUTIES ON TIME. WE FURTHER NOTE THAT ALTHOUGH IT MAY BE NECESSARY FOR SOME GUARDS TO GET TO WORK SHORTLY BEFORE THEIR TOUR OF DUTY OFFICIALLY BEGINS THE GENERAL SERVICES ADMINISTRATION HAS A POLICY OF GRANTING FREE LUNCH BREAKS OF UP TO 30 MINUTES EACH DAY. SUCH AN AUTHORIZED LUNCH BREAK IF NORMALLY FREE FROM DUTY WOULD BE FOR SETOFF AGAINST AN EQUAL AMOUNT OF EARLY REPORTING TIME.

FOR THE REASONS STATED THE ACTION OF THE CLAIMS DIVISION OF DECEMBER 7, 1965, IN THE 39 CASES PREVIOUSLY PRESENTED IS SUSTAINED. FURTHERMORE, WE ARE TODAY DIRECTING THAT DIVISION TO ISSUE A DISALLOWANCE FOR EACH OF THE 11 CLAIMS WHICH YOU ENCLOSED WITH YOUR LETTER OF JANUARY 28.