B-153307, AUG. 3, 1964

B-153307, AUG. 3, 1964

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

WE REFER TO YOUR LETTER OF MAY 26, 1964, YOUR REFERENCE DM 6:RWT:MRW, CONCERNING THE PAYMENT OF ADDITIONAL OVERTIME COMPENSATION TO MEMBERS OF THE CIVILIAN GUARD FORCE EMPLOYED BY THE DEPARTMENT OF THE NAVY AT THE U.S. NAVAL ORDNANCE LABORATORY, WHITE OAK, SILVER SPRING, MARYLAND, WHICH WAS THE SUBJECT OF OUR DECISION TO YOU OF MARCH 11, 1964, B-153307.

IN THE DECISION OF MARCH 11 WE AUTHORIZED YOU TO PAY ADDITIONAL OVERTIME COMPENSATION TO CIVILIAN GUARDS AT THE NAVAL ORDNANCE LABORATORY AS COMPENSATION FOR EARLY REPORTING FOR THE PERIOD BEGINNING JANUARY 1, 1961. WE BASED OUR APPROVAL OF THE PAYMENT OF SUCH OVERTIME COMPENSATION PARTLY UPON THE NAVAL ORDNANCE LABORATORY POST GENERAL ORDER, DATED AND EFFECTIVE JANUARY 1, 1961, WHICH REQUIRED CIVILIAN GUARDS TO REPORT TO WORK 30 MINUTES BEFORE THE TIME THEIR SHIFTS WERE SCHEDULED TO BEGIN. DID NOT APPROVE PAYMENTS OF ADDITIONAL OVERTIME COMPENSATION FOR ANY TIME BEFORE JANUARY 1, 1961, PRIMARILY BECAUSE WE DID NOT CONSIDER THE EVIDENCE SUBMITTED SUFFICIENT TO ESTABLISH THAT THE CIVILIAN GUARDS HAD BEEN REQUIRED TO REPORT EARLY BEFORE THAT DATE. IN THAT CONNECTION WE SAID:

"* * * 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.'

YOU NOW SUBMIT TWO ORDERS ISSUED BY THE NAVAL ORDNANCE LABORATORY AS ADDITIONAL EVIDENCE TO SHOW THAT THE CIVILIAN GUARDS CONCERNED WERE REQUIRED TO REPORT EARLY PRIOR TO JANUARY 1, 1961. ONE OF THOSE ORDERS IS DATED SEPTEMBER 29, 1954, AND IS ENTITLED "ORDERS FOR THE CIVIL GUARD OFFICER OF THE WATCH.' THAT ORDER REQUIRES THE WATCH OFFICER TO "MUSTER THE MEN OF HIS WATCH * * * 15 MINUTES BEFORE RELIEVING THE WATCH ON DUTY.' THE OTHER ORDER IS DATED DECEMBER 15, 1955, AND IS ENTITLED "CIVILIAN GUARD INSTRUCTION C.G.I. NO. 41," IT REQUIRES THAT "PREPARATIONS FOR, AND ACTUAL HOLDING OF ROLL CALL WILL BE DONE WITHIN THE 15 MINUTES PRECEDING RELIEF OF THE OFF-GOING WATCH.' WE CONSIDER THOSE DOCUMENTS SUFFICIENT EVIDENCE TO ESTABLISH THAT CIVILIAN GUARDS WERE REQUIRED TO REPORT AT LEAST 15 MINUTED BEFORE THE BEGINNING OF THEIR SHIFTS FROM SEPTEMBER 29, 1954, TO DECEMBER 31, 1960.

YOU ALSO PRESENTED WITH YOUR LETTER OF MAY 26 THE CLAIM OF MR. EARL H. BURDINE DATED MAY 7, 1964, BY WHICH HE ASKS OVERTIME PAY FOR 30 MINUTES EACH DAY FROM JULY 22, 1953, TO DECEMBER 31, 1960, ON THE BASIS OF HIS ALLEGATION THAT HE WAS REQUIRED TO REPORT 30 MINUTES EARLY AND WAS NOT ALLOWED AN "OFFICIAL ASSIGNED LUNCH PERIOD.' FOUR OF MR. BURDINE'S FELLOW EMPLOYEES WHO HAVE PERSONAL KNOWLEDGE OF THE FACTS HAVE ATTESTED TO THE TRUTH OF HIS STATEMENT. YOU SAY THAT 34 OTHER GUARDS HAVE PRESENTED SIMILAR CLAIMS. THE FACTS ALLEGED BY MR. BURDINE DO NOT AGREE EXACTLY WITH THE FACTS AS SHOWN IN THE ORDERS PRESENTED BY YOU. FURTHERMORE, FOR THE PERIOD PRIOR TO SEPTEMBER 29, 1954, NO DOCUMENT HAS BEEN SUBMITTED WHICH SHOWS THAT THE GUARDS CONCERNED WERE ORDERED TO REPORT EARLY. WE DO NOT BELIEVE THAT A GUARD'S STATEMENT EVEN THOUGH CORROBORATED MAY BE TAKEN AS CONCLUSIVE EVIDENCE THAT HE WAS REQUIRED TO REPORT BEFORE THE BEGINNING OF HIS SHIFT. THEREFORE, ON THE PRESENT RECORD WE CANNOT CONCLUDE THAT THE GUARDS INVOLVED WERE REQUIRED TO REPORT EARLY FOR THE PERIOD JULY 22, 1953, TO SEPTEMBER 29, 1954.

IN VIEW OF THE EVIDENCE NOW PRESENTED YOU ARE AUTHORIZED TO PAY OVERTIME COMPENSATION TO THE GUARDS CONCERNED FOR THE PERIOD SEPTEMBER 29, 1954, TO DECEMBER 31, 1960, ON A BASIS SIMILAR TO THAT AUTHORIZED IN OUR DECISION OF MARCH 1, 1964. WE NOTE THAT FOR THAT PERIOD OVERTIME PAYMENTS MUST BE BASED ON 15 MINUTES NOT 30 MINUTES PER DAY AND THAT APPROPRIATE SETOFFS AGAINST OVERTIME CREDITED SHOULD BE MADE FOR TIME GUARDS WERE PROPERLY RELIEVED FOR LUNCH BREAKS.

WE WERE INFORMALLY ADVISED THAT YOU DO NOT HAVE TIME AND ATTENDANCE RECORDS FOR THE ENTIRE PERIOD INVOLVED IN THE CLAIMS BUT THAT PAY AND LEAVE RECORDS WHICH ARE AVAILABLE CONTAIN INFORMATION WHICH WILL ENABLE YOU TO MAKE REASONABLY ACCURATE ESTIMATES OF THE NUMBER OF DAYS EACH CLAIMING GUARD REPORTED EARLY AND THE NUMBER OF DAYS EACH GUARD WAS NOT PROVIDED RELIEF FROM HIS DUTIES FOR A LUNCH BREAK. PAYMENTS MAY BE MADE ON THE BASIS OF THE MOST ACCURATE ESTIMATES YOU ARE ABLE TO MAKE AFTER CONSIDERATION OF ALL AVAILABLE RECORDS. IN THAT CONNECTION WE HAVE IN SIMILAR CASES WHERE EXACT RECORDS WERE NOT AVAILABLE APPROVED A FORMULA FOR COMPUTING THE NUMBER OF DAYS ON WHICH OVERTIME SERVICES, OF 15 MINUTES PER DAY, HAD NOT BEEN RENDERED BECAUSE OF ABSENCES FOR LEAVE, HOLIDAYS AND TARDINESS. UNDER THAT FORMULA DEDUCTION FROM THE AMOUNT OTHERWISE DUE FOR LEAVE TAKEN IS BASED UPON THE TOTAL LEAVE TAKEN BY THE CLAIMANT DURING A LEAVE YEAR, ONE DAY'S OVERTIME BEING DEDUCTED FOR EACH 8 HOURS OF LEAVE TAKEN DURING SUCH YEAR AND ONE DAY'S OVERTIME FOR ANY BALANCE OF LESS THAN 8 HOURS REMAINING. UNDER THAT FORMULA ONE DAY'S OVERTIME IS ALSO DEDUCTED FOR EACH HOLIDAY WITHIN HIS REGULAR TOUR OF DUTY ON WHICH THE CLAIMANT DID NOT WORK AND 4 DAYS' OVERTIME PER YEAR TO ACCOUNT FOR PROBABLE TARDINESS. SINCE WE UNDERSTAND RECORDS ARE NOT AVAILABLE TO ENABLE YOU TO ARRIVE AT A MORE NEARLY CORRECT FORMULA, YOUR COMPUTATION OF AMOUNTS TO BE DEDUCTED FOR ABSENCES SHOULD BE IN ACCORDANCE THEREWITH.

IN VIEW OF THE AUTHORITY GIVEN YOU BY THIS LETTER WE ENCLOSE FOR YOUR ACTION AND DIRECT SETTLEMENT THE CLAIM OF MR. WILBURN R. ARMSTRONG. HAVE INFORMED MR. ARMSTRONG OF THIS REFERRAL.