B-156407, JUL. 7, 1965

B-156407, JUL. 7, 1965

TO MR. N. T. WOLKOMIR, PRESIDENT, NATIONAL FEDERATION OF FEDERAL EMPLOYEES:

THIS REFERS TO YOUR LETTER OF MAY 25, 1965, AND ENCLOSURE, CONCERNING THE OVERTIME CLAIMED BY MR. W. S. BRANDENBURG AND 38 OTHER CIVILIAN GUARDS WHO PRIOR TO JULY 3, 1962, WERE ADMINISTRATIVELY REQUIRED TO REPORT FOR PRELIMINARY BRIEFING (15 MINUTES) AHEAD OF THEIR REGULAR 8-HOUR TOUR OF DUTY EACH DAY AT THE U.S. NAVAL ACADEMY, ANNAPOLIS, MARYLAND.

IN OUR CLAIMS DIVISION SETTLEMENT OF MAY 14, 1965, TO WHICH YOU REFER, MR. BRANDENBURG'S CLAIM WAS DISALLOWED BASED UPON THE RECORD, INCLUDING HIS ANSWERS ON THE QUESTIONNAIRE DATED JUNE 8, 1964, PARTICULARLY TO QUESTIONS 5, 6 AND 9:

"5. DID YOU NORMALLY BRING YOUR LUNCH? IF SO, WHAT PERCENT OF THE TIME? DID YOU NORMALLY PURCHASE YOUR LUNCH? IF SO WHAT PERCENT OF THE TIME?

"YES ALL THE TIME. NO FACILITIES AVAILABLE.

"6. IF YOU NORMALLY BROUGHT YOUR LUNCH DID YOU SUPPLEMENT IT WITH PURCHASE MADE AT THE ACTIVITY? IF SO WERE THESE PURCHASES MADE FROM VENDING MACHINES? SNACK BARS? CAFETERIA?

"OCCASIONALLY (SIC) BEVERAGES AND THE LIKE PURCHASED AT VENDING MACHINES.

"9. DESCRIBE THE ARRANGEMENTS PROVIDED FOR RELIEF WHILE ASSIGNED TO YOUR POST? DUE TO ILLNESS WHEN ON DUTY? TO VISIT REST ROOM? TO EAT? OBTAIN ASSISTANCE, IF REQUIRED?

"THE MAIN GATE WAS CALLED IN ALL INSTANCES AND RELIEF PROVIDED WHEN AVAILABLE.'

YOU SAY THE FACTS ARE THAT RELIEF IS NOT ALWAYS AVAILABLE; THAT THE GUARDS ARE ON DUTY WHEN THEY EAT A SANDWICH, ETC.; THAT THEY ARE REQUIRED TO PERFORM DUTY WHILE THEY ARE IN A RELIEF STATUS; THAT THERE IS NO SET LUNCH PERIOD, TWENTY MINUTES OR OTHERWISE; AND THAT THE GUARD MUST EAT WHENEVER HE HAS AN OPPORTUNITY TO DO SO, FREQUENTLY UNDER THE MOST DIFFICULT CONDITIONS AND CONSTANTLY AWARE THAT HE MAY RECEIVE AND DOES RECEIVE CALLS FOR IMMEDIATE DUTY. IN SHORT, YOU SAY, THE GUARDS ENJOYED NO TRUE LUNCH PERIOD AND IN FACT ARE ON DUTY EIGHT HOURS AND FIFTEEN MINUTES DURING THE PERIOD IN QUESTION.

IN THAT REGARD, ON AUGUST 25, 1964, THE REPORT FROM THE NAVAL ACADEMY SAYS "THE GUARDS WERE REQUIRED TO REPORT 15 MINUTES EARLY, HOWEVER, THEY WERE NOT CHARGED FOR LUNCH PERIODS (DURING THE 8-HOUR TOUR) AND OVER THE LONG HAUL IT WOULD APPEAR THAT THE GOVERNMENT MORE THAN ATONED FOR THE FIFTEEN MINUTE EARLY REPORTING REQUIREMENT.' ON SEPTEMBER 9, 1964, THE CHIEF OF INDUSTRIAL RELATIONS, WASHINGTON, D.C., ADVISED US "THIS EARLY REPORTING TIME WAS MORE THAN OFFSET BY THE LUNCH PERIOD OF TWENTY MINUTES WHICH WAS TAKEN ON GOVERNMENT TIME.'

THE EVIDENCE FURNISHED US BY THE ADMINISTRATIVE OFFICE SAYS THAT THE POLICY AT THE ACADEMY WAS TO PERMIT A FREE AND UNINTERRUPTED LUNCH PERIOD, WITH EXCEPTIONS BEING MADE TO THIS PRACTICE ONLY AT RARE TIMES WHEN AN EMERGENCY OCCURRED. WHILE IT APPEARS TO BE TRUE THAT NO SET TIME--- AS 12 P.M. TO 12:20 P.M.--- WAS SPECIFIED FOR A PARTICULAR GUARD AS HIS LUNCH PERIOD, THAT FACT ALONE MAY NOT SERVE AS A BASIS FOR EXCLUDING THE 20- MINUTE PERIOD TAKEN FOR LUNCH AS AN OFFSET AGAINST THE 15 MINUTES EARLY REPORTING REQUIREMENT.

THE ENCLOSURE WITH YOUR LETTER REVEALS THAT ON JULY 3, 1962, THE EARLY REPORTING TIME WAS OFFICIALLY DISCONTINUED. THAT FACT, HOWEVER, DOES NOT OVERWEIGH THE ABOVE PRIOR FACTS OF RECORD BEFORE US THAT THE EARLY REPORTING TIME EACH DAY WAS MORE THAN OFFSET BY THE LUNCH PERIODS PREVIOUSLY GRANTED ON GOVERNMENT TIME.

IT HAS BEEN THE ESTABLISHED RULE OF GOVERNMENT ACCOUNTING OFFICERS TO REJECT OR TO DISALLOW CLAIMS CONCERNING WHICH THERE IS 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. B-146380, OCTOBER 26, 1962; COPY ENCLOSED. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291; CHARLES V. UNITED STATES, 19 CT.CL. 316, 319.

IN THE CIRCUMSTANCES AND CONSIDERING THAT MR. BRANDENBURG'S CLAIM COMES WITHIN THE APPLICATION OF THAT RULE, THE DISALLOWANCE OF HIS CLAIM IS SUSTAINED.

AS TO THE SIMILAR CLAIMS MADE BY THE 38 OTHER GUARDS WHICH WERE RETAINED BY THE NAVAL ACADEMY PENDING OUR FINAL ACTION ON MR. BRANDENBURG'S CLAIM, WE UNDERSTAND THE NAVAL ACADEMY INDUSTRIAL RELATIONS OFFICER WILL TAKE PROMPT ADMINISTRATIVE ACTION THEREON CONSISTENT WITH THE BRANDENBURG CASE.