B-137702, APR. 27, 1960

B-137702: Apr 27, 1960

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YOU WERE ADVISED BY OUR LETTERS OF OCTOBER 23. WE NOW HAVE RECEIVED THE REQUESTED REPORT. YOUR PRIMARY FUNCTION WAS TO MAKE CERTAIN THAT THE CONCRETE BEING PLACED IN A FORM WAS PROPERLY PLACED. THE PLACEMENT INSPECTOR WAS EXPECTED TO OBSERVE THE CONSOLIDATION OPERATION OF EVERY BATCH OF CONCRETE POURED. THE ADMINISTRATIVE OFFICE SAYS THAT THE LUNCH PERIODS AS SHOWN IN YOUR CLAIM WERE ARBITRARILY SELECTED BY YOU. NO REGULAR LUNCH PERIOD WAS ESTABLISHED. THE CONCRETE POURING WAS A CONTINUOUS OPERATION WHICH COULD NOT BE SHUT DOWN FOR LUNCH. IT WAS NECESSARY FOR THE CONCRETE PLACEMENT INSPECTORS TO BE PRESENT THROUGHOUT THE POUR. THE SHIFT ARRANGEMENT UNDER WHICH YOU WORKED WAS AN ESTABLISHED PRACTICE OF LONG STANDING.

B-137702, APR. 27, 1960

TO MR. ERNEST A. HELMS:

THIS REFERS TO YOUR LETTERS OF SEPTEMBER 30, 1959, AND FEBRUARY 19, 1960, CONCERNING OUR DECISION OF APRIL 15, 1959, TO YOU, WHEREIN WE SUSTAINED THE ACTION TAKEN IN OUR OFFICE SETTLEMENT OF SEPTEMBER 4, 1958, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION ALLEGED TO BE DUE FOR WORK PERFORMED DURING 253 ONE-HALF HOUR LUNCH PERIODS FOR VARIOUS DAYS FROM MARCH 22, 1954, THROUGH AUGUST 27, 1957, AS AN EMPLOYEE OF THE UNITED STATES ARMY ENGINEER DISTRICT, PORTLAND, OREGON.

YOU WERE ADVISED BY OUR LETTERS OF OCTOBER 23, 1959, AND FEBRUARY 29, 1960, THAT IN VIEW OF THE CONTENTIONS ADVANCED IN YOUR LETTER OF SEPTEMBER 30, 1959, WE FOUND IT NECESSARY TO OBTAIN A FURTHER REPORT IN THE MATTER. WE NOW HAVE RECEIVED THE REQUESTED REPORT. THAT REPORT SETS OUT THE FOLLOWING FACTS:

AS A CONCRETE PLACEMENT INSPECTOR IN CONNECTION WITH THE CONSTRUCTION OF THE DALLES DAM, THE DALLES, OREGON, YOUR PRIMARY FUNCTION WAS TO MAKE CERTAIN THAT THE CONCRETE BEING PLACED IN A FORM WAS PROPERLY PLACED. THE PLACEMENT INSPECTOR WAS EXPECTED TO OBSERVE THE CONSOLIDATION OPERATION OF EVERY BATCH OF CONCRETE POURED. IN PRESENTING YOUR CLAIM YOU SHOWED THE MIDDLE ONE-HALF HOUR OF YOUR TOUR OF DUTY AS YOUR LUNCH PERIOD. THE ADMINISTRATIVE OFFICE SAYS THAT THE LUNCH PERIODS AS SHOWN IN YOUR CLAIM WERE ARBITRARILY SELECTED BY YOU. BECAUSE OF THE NATURE OF THE WORK, NO REGULAR LUNCH PERIOD WAS ESTABLISHED. THE CONCRETE POURING WAS A CONTINUOUS OPERATION WHICH COULD NOT BE SHUT DOWN FOR LUNCH, AND IT WAS NECESSARY FOR THE CONCRETE PLACEMENT INSPECTORS TO BE PRESENT THROUGHOUT THE POUR. THE SHIFT ARRANGEMENT UNDER WHICH YOU WORKED WAS AN ESTABLISHED PRACTICE OF LONG STANDING.

YOUR SHIFT ASSIGNMENT WAS A 40-HOUR WEEK CONSISTING OF FIVE EIGHT HOUR DAYS, EACH TO BE WORKED IN AN ELAPSED TIME OF EIGHT AND ONE-HALF HOURS. THE RECORD SHOWS THAT ON THOSE DAYS WHEN YOU SPENT MORE THAN EIGHT HOURS INSPECTING CONCRETE FORMS YOU WERE PAID OVERTIME. THE ADMINISTRATIVE OFFICE REPORTS THAT ON OTHER DAYS YOU WERE AFFORDED A 30-MINUTE FREE LUNCH PERIOD DURING YOUR EIGHT AND ONE-HALF HOUR TOUR OF DUTY.

IN VIEW OF THE NATURE OF THE DUTIES OF THE POSITION HELD BY YOU AND THE FACT THAT YOU HAD NO PREDETERMINED LUNCH PERIOD SCHEDULED THE SAME TIME VERY DAY OR THAT YOUR LUNCH PERIOD WAS SUBJECT TO INTERRUPTION WOULD NOT ENTITLE YOU TO OVERTIME FOR THOSE PERIODS WHEN YOU WERE DEPRIVED OF A LUNCH PERIOD WITHIN THE MIDDLE ONE-HALF HOUR OF YOUR TOUR OF DUTY. THEREFORE, UPON THE BASIS OF THE PRESENT RECORD WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE PREVIOUS ACTION TAKEN BY OUR OFFICE.