B-141846, NOV. 7, 1966

B-141846, NOV. 7, 1966

TO MR. JAMES E. MCNALL:

THIS IS IN REPLY TO YOUR UNSIGNED LETTER DATED SEPTEMBER 28, 1966, APPEALING FROM OUR OFFICE SETTLEMENT OF AUGUST 16, 1966, DENYING YOUR CLAIM FOR PAYMENT OF OVERTIME COMPENSATION AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, WESTERN CONTRACT MANAGEMENT REGION, LOS ANGELES MANAGEMENT CONTRACT DISTRICT, LOS ANGELES, CALIFORNIA.

YOU ARE MAKING CLAIM FOR 354 HOURS OF OVERTIME REPRESENTING TWENTY ONE OCCASIONS BETWEEN APRIL 1961 AND JUNE 1965, IN WHICH YOU AS A STAFF DUTY OFFICER FOR THE WESTERN CONTRACT MANAGEMENT REGION, MIRA LOMA AIR FORCE STATION, MIRA LOMA, CALIFORNIA, STOOD AN OVERNIGHT TELEPHONE WATCH AT HOME EXTENDING FROM THE CLOSE OF WORK ON ONE DAY UNTIL THE NEXT WORKDAY, OR A 24-HOUR TELEPHONE WATCH ON WEEKEND DAYS. ACCORDING TO YOUR LETTER THE WATCH INVOLVED BOTH EMERGENCY AND NON EMERGENCY MATTERS. YOU STATE THAT ALTHOUGH THE WATCH ONLY CAME APPROXIMATELY ONCE A QUARTER THAT IT CONSTITUTED CONSIDERABLE INCONVENIENCE IN THAT YOUR MOVEMENTS AND SOCIAL LIFE WERE RESTRICTED. YOU ALSO INDICATED THAT AS DUTY OFFICER YOU RECEIVED TWO TO FOUR CALLS A NIGHT FROM ANDREWS AIR FORCE BASE WITH AT LEAST ONE CALL COMING AFTER MIDNIGHT. YOU FEEL THAT SINCE YOU WERE REQUIRED TO REMAIN WITHIN HEARING DISTANCE OF THE PHONE, TO CONDUCT YOURSELF IN A PROPER AND INTELLIGENT MANNER, INITIATE PHONE CALLS, AND PREPARE REPORTS THAT THIS WAS AN INVASION OF YOUR PRIVACY FOR WHICH YOU ARE ENTITLED TO COMPLAIN.

HEADQUARTERS OFFICE INSTRUCTION NR 30-1, NOVEMBER 30, 1961, DEALING WITH ASSIGNMENT OF DUTY OFFICERS PROVIDED IN PARAGRAPH 5B FOR SUBSTITUTIONS OF DUTY ASSIGNMENT UPON THE INDIVIDUAL'S OBTAINING A QUALIFIED RELIEF. DURING THE PERIOD OF DUTY PARAGRAPH 8 OF THE INSTRUCTION PERMITTED THE DUTY OFFICER TO ABSENT HIMSELF FROM HIS HOME TEMPORARILY EITHER BY OBTAINING A QUALIFIED INDIVIDUAL TO REPLACE HIM OR IF HE WAS GOING TO A NEARBY PLACE BY LEAVING THE PHONE NUMBER OF SUCH PLACE.

HEADQUARTERS OPERATING INSTRUCTION NR 30-1 OF DECEMBER 19, 1963, RETAINED THE TWO PROVISIONS OF THE PRIOR INSTRUCTION RELATING TO SUBSTITUTION AND TEMPORARY REPLACEMENT AND ELIMINATED THE ONE PERMITTING THE DUTY OFFICER TO GO TO A NEARBY PLACE SO LONG AS HE LEFT THE PHONE NUMBER AT WHICH HE COULD BE REACHED.

THE ASSIGNMENT TO STAND EMERGENCY PHONE DUTY AT HOME PERMITTED CONSIDERABLE FREEDOM WITH RESPECT TO TIME OF SERVICE AND, INITIALLY AT LEAST, AS TO PLACE OF SERVICE. THIS IS SUPPORTED BY EXAMINATION OF ATTACHMENT NO. 2 TO YOUR UNDATED LETTER RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON OCTOBER 29, 1965, SHOWING THAT OF THE TWENTY-ONE WATCHES YOU STOOD IN THE SLIGHTLY OVER FOUR-YEAR PERIOD SEVEN WERE IN SUBSTITUTION FOR OTHER INDIVIDUALS. THIS IS UNLIKE REGULAR ASSIGNMENTS TO DUTY IN WHICH THE EMPLOYEE IS REQUIRED TO BE PRESENT AND REMAIN AT A PARTICULAR POINT, FOR A REQUIRED PERIOD OF TIME, AND CARRY ON HIS OWN WORK WITHOUT SUBSTITUTION OR REPLACEMENT.

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY THE FEDERAL EMPLOYEES PAY ACT AMENDMENTS OF 1954, 68 STAT. 1109, 5 U.S.C. 911 (NOW 5 U.S.C. 5542), PROVIDES IN PERTINENT PART:

"ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES TO WHOM THIS SUBCHAPTER APPLIES SHALL BE CONSIDERED TO BE OVERTIME WORK AND COMPENSATION FOR SUCH OVERTIME WORK, EXCEPT AS OTHERWISE PROVIDED FOR IN THIS CHAPTER, SHALL BE AT THE FOLLOWING RATES * * *"

"ARMOUR AND CO. V. WANTOCK, 323 U.S. 126, 133, THE SUPREME COURT, IN ORDER TO DETERMINE WHAT CONSTITUTED "WORK," USED THE CRITERION OF WHETHER THE TIME IN QUESTION WAS SPENT "* * * PREDOMINANTLY FOR THE EMPLOYER'S BENEFIT OR FOR THE EMPLOYEES * * *" AND STATED THAT THIS WAS "* * * DEPENDENT UPON ALL THE CIRCUMSTANCES OF THE CASE.'

WHILE YOU MAY HAVE RECEIVED SEVERAL PHONE CALLS IN THE COURSE OF EACH TOUR OF DUTY AS AN EMERGENCY STAFF DUTY OFFICER NEVERTHELESS YOUR TIME DURING THE WATCH PERIOD WAS SPENT PREDOMINANTLY FOR YOUR OWN BENEFIT. YOU WERE FREE TO READ, EAT, SLEEP, ENTERTAIN FRIENDS AND OTHERWISE FOLLOW YOUR NORMAL PURSUITS WHILE STANDING THE STAFF DUTY WATCH.

DUTY OF THIS TYPE DOES NOT CONSTITUTE "HOURS OF WORK" WITHIN THE MEANING OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA. RAPP AND HAWKINS V. UNITED STATES, 167 CT.CL. 852 (1964), MOSS V. UNITED STATES, 353 F.2D 746. IT FOLLOWS THAT IN THE ABSENCE OF A STATUTE AUTHORIZING COMPENSATION FOR "PER ANNUM" EMPLOYEES FOR "ON CALL" TIME SPENT AT THEIR HOMES, AS DISTINGUISHED FROM STANDBY TIME WITHIN THE CONFINES OF THEIR OFFICIAL STATIONS, COMPENSATION MAY NOT BE ALLOWED FOR SUCH TIME. ACCORDINGLY, OUR OFFICE SETTLEMENT DENYING YOUR CLAIM IS AND MUST BE SUSTAINED.