B-100811, JUL. 23, 1962

B-100811: Jul 23, 1962

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WE ALSO HAVE RECEIVED YOUR LETTER OF JUNE 7 INQUIRING ABOUT THE STATUS OF YOUR CLAIM. YOUR TELEPHONE CALL OF JULY 12 WAS ACKNOWLEDGED BY OUR LETTER OF THE SAME DATE. IT APPEARS THAT YOUR REGULAR TOUR OF DUTY AT BUFFALO IS FROM 9:00 A.M. YOU ARE ASSIGNED TO INSPECT PASSENGERS ON A TRAIN SCHEDULED TO LEAVE HAMILTON AT 9:50 P.M. YOU HAVE BEEN PAID EXTRA COMPENSATION ON THE BASIS OF ACTUAL DUTY TIME COMMENCING AT 9:50 P.M. YOU WERE PAID ONE DAY'S EXTRA COMPENSATION FOR 4 HOURS AND 3 MINUTES. YOU CONTEND THAT THE TIME ON DUTY (FROM WHICH THE RETROSPECTIVE "ROLLBACK TIME" AS WELL AS THE PROSPECTIVE ACTUAL DUTY TIME IS TO BE COMPUTED) SHOULD BE REGARDED AS COMMENCING WHEN YOU DEPART FROM BUFFALO FOR HAMILTON (6:21 P.M.).

B-100811, JUL. 23, 1962

 

TO MR. LESTER H. KROLL:

ON APRIL 10, 1962, YOU REQUESTED RECONSIDERATION OF OUR SETTLEMENT OF MARCH 23, 1962, WHICH DISALLOWED YOUR CLAIM FOR EXTRA COMPENSATION IN ADDITION TO THAT ALREADY RECEIVED UNDER THE ACT OF MARCH 2, 1931, AS AMENDED, 5 U.S.C. 342C, IN CONNECTION WITH OVERTIME SERVICES INVOLVING THE INSPECTION OF PASSENGERS ON TRAINS PROCEEDING FROM HAMILTON, ONTARIO, CANADA, TO BUFFALO, NEW YORK. WE ALSO HAVE RECEIVED YOUR LETTER OF JUNE 7 INQUIRING ABOUT THE STATUS OF YOUR CLAIM. YOUR TELEPHONE CALL OF JULY 12 WAS ACKNOWLEDGED BY OUR LETTER OF THE SAME DATE.

IT APPEARS THAT YOUR REGULAR TOUR OF DUTY AT BUFFALO IS FROM 9:00 A.M. TO 5:00 P.M. (NOT 8:00 A.M. TO 4:00 P.M. AS STATED IN OUR SETTLEMENT). OCCASION, YOU ARE ASSIGNED TO INSPECT PASSENGERS ON A TRAIN SCHEDULED TO LEAVE HAMILTON AT 9:50 P.M. AND TO ARRIVE AT BUFFALO AT 11:53 P.M. IN ORDER TO BE AVAILABLE FOR THE INSPECTION COMMENCING AT HAMILTON, YOU LEAVE BY TRAIN FROM BUFFALO AT 6:21 P.M. YOU HAVE BEEN PAID EXTRA COMPENSATION ON THE BASIS OF ACTUAL DUTY TIME COMMENCING AT 9:50 P.M. PLUS 2 HOURS'"ROLLBACK TIME" TO 7:50 P.M. AS PROVIDED BY SECTIONS 7 AND 9 OF THE IMMIGRATION AND NATURALIZATION SERVICE REGULATIONS. UNDER THE 1931 ACT FORMULA OF 1/2 DAY'S PAY FOR EACH 2 HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR, YOU WERE PAID ONE DAY'S EXTRA COMPENSATION FOR 4 HOURS AND 3 MINUTES. YOU CONTEND THAT THE TIME ON DUTY (FROM WHICH THE RETROSPECTIVE "ROLLBACK TIME" AS WELL AS THE PROSPECTIVE ACTUAL DUTY TIME IS TO BE COMPUTED) SHOULD BE REGARDED AS COMMENCING WHEN YOU DEPART FROM BUFFALO FOR HAMILTON (6:21 P.M.) RATHER THAN FROM THE TIME INSPECTIONS ARE COMMENCED EN ROUTE FROM HAMILTON TO BUFFALO (9:50 P.M.). THUS YOU CLAIM 1 1/2 DAYS' EXTRA COMPENSATION FOR THE 6 HOURS AND 53 MINUTES EXTENDING FROM 5 P.M. (THE EARLIEST BEGINNING TIME FOR DAILY OVERTIME UNDER THE 1931 ACT) TO 11:53 P.M.

IN SUBSTANCE YOUR CLAIM IS FOR EXTRA COMPENSATION UNDER THE 1931 ACT FOR TRAVEL AND LAYOVER TIME PRECEDING THE ACTUAL COMMENCEMENT OF INSPECTIONS AT HAMILTON. WE CONSISTENTLY HAVE HELD UNDER VARIOUS OVERTIME STATUTES THAT TRAVEL NOT INVOLVING ACTUAL PERFORMANCE OF WORK OR ARDUOUS CONDITIONS DOES NOT CONSTITUTE COMPENSABLE DUTY. PARTICULARLY PERTINENT HERE IS OUR DECISION IN 37 COMP. GEN. 276 (B 132126, OCTOBER 24, 1957, COPY ENCLOSED), CITED IN OUR SETTLEMENT, HOLDING THAT THE COMMENCEMENT OF TRAVEL OF CUSTOMS INSPECTORS TO A DUTY ASSIGNMENT DID NOT CONSTITUTE A REPORTING FOR DUTY FOR PURPOSES OF OVERTIME EXTRA COMPENSATION UNDER SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 267. IN THE CONSIDERATION OF YOUR CLAIM, AS WELL AS A NUMBER OF OTHER SIMILAR CLAIMS, WE CONCLUDED THAT IMMIGRATION INSPECTORS WITHIN THE PURVIEW OF THE 1931 ACT LIKEWISE ARE NOT TO BE CONSIDERED IN A DUTY STATUS UNDER SAID ACT WHILE TRAVELING TO A PLACE WHERE INSPECTIONAL SERVICES ARE TO BE RENDERED, EXCEPT TO THE EXTENT THAT THE TRAVEL TIME MIGHT BE INCLUDED IN THE CONSTRUCTIVE WAITING TIME ALLOWANCE OF UP TO 2 HOURS ("ROLLBACK TIME") ADMINISTRATIVELY PRESCRIBED UNDER THE DISCRETIONARY AUTHORITY CONFERRED BY THE ACT TO "FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES * * *.' DO NOT REGARD THE CONTENTIONS ADVANCED BY YOU AS WARRANTING ANY CHANGE IN THAT CONCLUSION.

YOU STRESS THE FACT THAT YOUR ORDERS (ITEMS 4 AND 5 OF FORM C-202) DIRECTED YOU TO REPORT "FOR DUTY" AT BLACK ROCK STATION IN BUFFALO. HOWEVER, SAID ITEMS 4 AND 5 OBVIOUSLY ARE PRIMARILY DESIGNED FOR USE IN CONNECTION WITH ASSIGNMENTS TO PLACES WHERE ACTUAL INSPECTIONS ARE TO TAKE PLACE. A STAMPED IMPRINT ON THE FORM MODIFIES IT TO SHOW THE ACTUAL ASSIGNMENT IN SITUATIONS SUCH AS HERE INVOLVED. AS THUS MODIFIED, ITEMS 4 AND 5 ASSUME THE NATURE OF A TRAVEL ORDER (DESIGNATING TIME OF DEPARTURE, ETC.) FOR THE ACTUAL ASSIGNMENT SHOWN BY THE IMPRINT. THE FACT THAT AS A MATTER OF ADMINISTRATIVE CONVENIENCE THE BASIC FORM IS USED IN A VARIETY OF SITUATIONS CANNOT OPERATE TO CREATE A RIGHT TO EXTRA COMPENSATION UNDER THE 1931 ACT CONTRARY TO THE ACTUAL CIRCUMSTANCES OF THE PARTICULAR ASSIGNMENT. IN THE EXAMPLE SUBMITTED BY YOU, IT BECOMES CLEAR FROM AN EXAMINATION OF THE BASIC FORM TOGETHER WITH THE IMPRINT THAT NO INSPECTIONAL DUTY WAS TO BE PERFORMED AT BLACK ROCK STATION BUT THAT ACTUAL INSPECTIONAL DUTY WAS NOT TO BE COMMENCED UNTIL YOU BOARDED NEW YORK CENTRAL TRAIN NO. 376 AT HAMILTON.

YOU ALSO CONTEND THAT THE PROVISIONS OF THE 1931 ACT AND THE IMPLEMENTING PORTION OF THE REGULATIONS TO THE EFFECT THAT THE EXTRA COMPENSATION OF IMMIGRATION OFFICERS AND EMPLOYEES SHALL BE PAID IF THEY HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, WHETHER THE ACTUAL INSPECTION OR EXAMINATION OF PASSENGERS OR CREW TAKES PLACE OR NOT, HAS THE EFFECT OF AUTHORIZING EXTRA COMPENSATION FROM THE TIME OF YOUR REPORTING AT BLACK ROCK STATION. CLEARLY THAT PROVISION HAS REFERENCE TO A REPORTING FOR DUTY AT A PLACE WHERE ACTUAL INSPECTION IS EXPECTED TO TAKE PLACE. HERE, NO INSPECTION IS OR COULD BE EXPECTED TO TAKE PLACE AT THE POINT OF DEPARTURE FOR DUTY IN CANADA, AND, THEREFORE, THE PROVISION REFERRED TO HAS NO BEARING ON THE PRESENT MATTER.

WITH REFERENCE TO OTHER CONTENTIONS WHICH MAY BE IMPLIED FROM YOUR UNDERSCORING OF CERTAIN PROVISIONS OF THE 1931 ACT QUOTED IN YOUR LETTER, SUCH AS "WHO MAY BE REQUIRED TO REMAIN ON DUTY" AND "TO PERFORM DUTIES IN CONNECTION WITH," WE MAY SAY THAT "REMAIN ON DUTY" TIME LARGELY IS A MATTER WITHIN THE ADMINISTRATIVE DISCRETION CONFERRED BY THE STATUTE. THE "REMAIN ON DUTY" TIME FOR A PARTICULAR OVERTIME ASSIGNMENT IS PRESCRIBED AS THE ACTUAL TIME SPENT ON AN INSPECTION PLUS 2 HOURS OR LESS (DEPENDING UPON THE TIME AN INSPECTION BEGINS IN RELATION TO 5:00 P.M. OR THE END OF THE INSPECTOR'S BASIC DAILY WORKING HOURS). WE SEE NOTHING IN THE LAW WHICH REQUIRES OR JUSTIFIES THE PAYMENT OF EXTRA COMPENSATION FOR ANY TIME IN EXCESS OF THAT THUS PRESCRIBED.

FOR THE REASONS DISCUSSED ABOVE, THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT OF MARCH 23, 1962, MUST BE AND IS SUSTAINED.

YOU ARE, OF COURSE, CORRECT IN SAYING THAT YOU DID NOT CONTEND THAT THE CASE OF CAGLE, ET AL. V. UNITED STATES, CT.CL. 34-59 FORMED A BASIS FOR PAYMENT OF YOUR CLAIM, AS INDICATED IN OUR SETTLEMENT. THAT PART OF THE SETTLEMENT SHOULD BE DISREGARDED.