B-174069, B-181541, B-152707, B-181317, B-158549, SEP 11, 1974

B-152707,B-158549,B-181541,B-181317,B-174069: Sep 11, 1974

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WILL HAVE THEIR APPEALS REFERRED TO EMPLOYING AGENCY FOR FURTHER DEVELOPMENT OF RECORD IN ACCORDANCE WITH NEW STANDARDS IN BAYLOR AS TO WHEN OVERTIME IS AUTHORIZED. SINCE GAO FOLLOWS BAYLOR DECISION AND SINCE FACTS RELATING TO NEW STANDARDS WERE NOT DEVELOPED IN CLAIMS PRIOR TO BAYLOR. SINCE THE LAW IS NOW SETTLED AND IT REMAINS ONLY TO DETERMINE THE FACTS IN EACH CASE. SINCE EMPLOYING AGENCY IS IN BEST POSITION TO DETERMINE VARIOUS CIRCUMSTANCES AT EACH GUARD POST WHICH MAY HAVE REQUIRED OVERTIME. PICKETT IS APPEALING AN ADVERSE COMPTROLLER GENERAL DECISION. MORELAND ARE APPEALING ADVERSE SETTLEMENTS MADE BY OUR TRANSPORTATION AND CLAIMS DIVISION. MERCER IS MAKING AN ORIGINAL CLAIM. DURING THE TIME FOR WHICH OVERTIME COMPENSATION IS CLAIMED.

B-174069, B-181541, B-152707, B-181317, B-158549, SEP 11, 1974

1. CIVILIAN GUARDS WHO REQUEST RECONSIDERATION OF THEIR CLAIMS FOR OVERTIME COMPENSATION DENIED PRIOR TO COURT OF CLAIMS DECISION IN BAYLOR V. UNITED STATES, 198 CT. CL. 331 (1972), WILL HAVE THEIR APPEALS REFERRED TO EMPLOYING AGENCY FOR FURTHER DEVELOPMENT OF RECORD IN ACCORDANCE WITH NEW STANDARDS IN BAYLOR AS TO WHEN OVERTIME IS AUTHORIZED, SINCE GAO FOLLOWS BAYLOR DECISION AND SINCE FACTS RELATING TO NEW STANDARDS WERE NOT DEVELOPED IN CLAIMS PRIOR TO BAYLOR. SINCE THE LAW IS NOW SETTLED AND IT REMAINS ONLY TO DETERMINE THE FACTS IN EACH CASE, THE EMPLOYING AGENCY SHOULD PAY ALL APPEALS SUPPORTED BY FACTS MEETING BAYLOR CRITERIA, ONLY REFERRING DOUBTFUL APPEALS TO COMPTROLLER GENERAL. 2. CLAIMS OF CIVILIAN GUARDS FOR OVERTIME COMPENSATION PRESENTED FOR THE FIRST TIME PURSUANT TO DECISION IN BAYLOR AND FOR PERIODS PRIOR TO EFFECTIVE DATE OF FAIR LABOR STANDARDS AMENDMENTS OF 1974 SHOULD BE FORWARDED TO THE RESPECTIVE EMPLOYING AGENCY FOR COMPLETE DEVELOPMENT OF RECORD AND PAYMENT IN ACCORDANCE WITH THE LAW AS ESTABLISHED IN BAYLOR. ONLY CLAIMS OF DOUBTFUL LEGALITY SHOULD BE REFERRED TO THE COMPTROLLER GENERAL. SINCE EMPLOYING AGENCY IS IN BEST POSITION TO DETERMINE VARIOUS CIRCUMSTANCES AT EACH GUARD POST WHICH MAY HAVE REQUIRED OVERTIME, THE EMPLOYING AGENCY, NOT GAO, SHOULD SEND OUT NECESSARY QUESTIONNAIRES TO CLAIMANTS REGARDING AMOUNTS OF OVERTIME CLAIMED.

COY L. PICKETT, CHESTER L. BLACKWELL, WERNER D. SCHALLER, IVAN F. MORELAND AND BYRON W. MERCER - OVERTIME COMPENSATION:

THIS DECISION CONCERNS THE APPEALS OF COY L. PICKETT, CHESTER L. BLACKWELL, WERNER D. SCHALLER, IVAN F. MORELAND, AND A NEW CLAIM OF BYRON W. MERCER FOR OVERTIME COMPENSATION BELIEVED DUE INCIDENT TO THEIR EMPLOYMENT WITH THE GOVERNMENT AS GUARDS. SPECIFICALLY, MR. PICKETT IS APPEALING AN ADVERSE COMPTROLLER GENERAL DECISION, MR. BLACKWELL, MR. SCHALLER AND MR. MORELAND ARE APPEALING ADVERSE SETTLEMENTS MADE BY OUR TRANSPORTATION AND CLAIMS DIVISION, AND MR. MERCER IS MAKING AN ORIGINAL CLAIM. THE CLAIMS COVER PERIODS PRIOR TO THE EFFECTIVE DATE OF THE OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS AMENDMENTS OF 1974, PUBLIC LAW 93-259, APPROVED APRIL 8, 1974.

MR. PICKETT, MR. SCHALLER, MR. BLACKWELL, MR. MORELAND AND MR. MERCER CLAIM OVERTIME COMPENSATION FOR TIME SPENT IN CHANGING UNIFORMS, DRAWING EQUIPMENT, AND FOR PERFORMING OTHER SUCH INCIDENTAL DUTIES ALLEGEDLY REQUIRED BOTH PRIOR TO AND AFTER THE REGULAR HOURS OF THEIR SHIFTS INCIDENT TO THEIR EMPLOYMENT BY THE GOVERNMENT AS GUARDS. DURING THE TIME FOR WHICH OVERTIME COMPENSATION IS CLAIMED, MR. PICKETT WAS EMPLOYED BY THE DEPARTMENT OF THE NAVY, MR. SCHALLER AND MR. BLACKWELL WERE EMPLOYED BY THE AIR FORCE AND MR. MORELAND AND MR. MERCER WERE EMPLOYED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

MR. PICKETT, MR. BLACKWELL, MR. SCHALLER AND MR. MORELAND RECEIVED ADVERSE RULINGS ON THEIR CLAIMS FOR OVERTIME COMPENSATION BECAUSE THE APPROPRIATE OFFICIAL WAS FOUND NOT TO HAVE AUTHORIZED THEIR OVERTIME. HOWEVER, THESE RULINGS WERE MADE PRIOR TO THE COURT OF CLAIMS DECISION IN BAYLOR V. UNITED STATES, 198 CT. CL. 331 (1972), WHICH DECISION CHANGED THE STANDARDS BY WHICH IT MAY BE DETERMINED WHETHER THE PROPER OFFICIAL AUTHORIZED OVERTIME. PRIOR TO BAYLOR, THE STANDARD USED FOR DETERMINING AN EMPLOYEE'S ENTITLEMENT TO OERTIME COMPENSATION WAS WHETHER THE OVERTIME WAS SPECIFICALLY ORDERED BY A COMPETENT REGULATION. ON THAT BASIS, MANY CLAIMS FOR OVERTIME COMPENSATION SUCH AS THOSE OF MR. PICKETT, MR. BLACKWELL, MR. SCHALLER AND MR. MORELAND, WERE DENIED. HOWEVER, THE COURT IN BAYLOR IN ADOPTING THE OPINION OF THE COMMISSIONER, STATED THE LAW AS FOLLOWS:

"THIS CASE IS IMPORTANT IN THAT IT ILLUSTRATES THE TWO EXTREMES; THAT IS, IF THERE IS A REGULATION SPECIFICALLY REQUIRING OVERTIME PROMULGATED BY A RESPONSIBLE OFFICIAL, THEN THIS CONSTITUTES 'OFFICIALLY ORDERED OR APPROVED' BUT, AT THE OTHER EXTREME, IF THERE IS ONLY A 'TACIT EXPECTATION' THAT OVERTIME IS TO BE PERFORMED, THIS DOES NOT CONSTITUTE OFFICIAL ORDER OR APPROVAL.

"IN BETWEEN 'TACIT EXPECTATION' AND A SPECIFIC REGULATION REQUIRING A CERTAIN NUMBER OF MINUTES OF OVERTIME THERE EXISTS A BROAD RANGE OF FACTUAL POSSIBILITIES, WHICH IS BEST CHARACTERIZED AS 'MORE THAN A TACIT EXPECTATION.' WHERE THE FACTS SHOW THAT THERE IS MORE THAN ONLY A 'TACIT EXPECTATION' THAT OVERTIME BE PERFORMED, SUCH OVERTIME HAS BEEN FOUND TO BE COMPENSABLE AS HAVING BEEN 'OFFICIALLY ORDERED OR APPROVED,' EVEN IN THE ABSENCE OF A REGULATION SPECIFICALLY REQUIRING A CERTAIN NUMBER OF MINUTES OF OVERTIME. WHERE EMPLOYEES HAVE BEEN 'INDUCED' BY THEIR SUPERIORS TO PERFORM OVERTIME IN ORDER TO EFFECTIVELY COMPLETE THEIR ASSIGNMENTS AND DUE TO THE NATURE OF THEIR EMPLOYMENT, THIS OVERTIME HAS BEEN HELD TO HAVE BEEN 'OFFICIALLY ORDERED OR APPROVED,' AND THEREFORE COMPENSABLE. ANDERSON V. UNITED STATES, 136 CT. CL. 365 (1956) (HEREINAFTER REFERRED TO AS ANDERSON II) (CUSTOMS BORDER PATROL INSPECTORS); ADAMS V. UNITED STATES, 162 CT. CL. 766 (1963), (INSPECTORS OF THE BORDER PATROL OF THE IMMIGRATION AND NATURALIZATION SERVICE); BYRNES V. UNITED STATES, 163 CT. CL. 167, 324 F.2D 966 (1963), AS AMENDED, 330 F.2D 986 (1964) (INVESTIGATORS OF THE INTERNAL REVENUE SERVICE ALCOHOL AND TOBACCO TAX DIVISION)."

MORE SPECIFICALLY AS APPLIED TO THE PARTICULAR CASE, THE COMMISSIONER AND THE COURT IN BAYLOR CONCLUDED:

"ALTHOUGH MR. CASTELLA (WHO HAD AUTHORITY TO AUTHORIZE OR APPROVE THE OVERTIME) DENIED THAT HE KNEW HOW MUCH TIME ANY OF PLAINTIFF GUARDS SPENT IN PERFORMING THE AFORE STATED ACTIONS, CONSIDERING THE EXTENT OF HIS KNOWLEDGE OF THE PRESHIFT AND POST SHIFT ACTIVITIES GENERALLY REQUIRED OF THE GUARDS BY THE REGULATIONS, IT IS CONCLUDED AND FOUND THAT HE MUST HAVE BEEN AWARE OF THE FACT THAT THEY WERE ACTUALLY REQUIRED EACH DAY TO PERFORM, AND ACTUALLY DID PERFORM, SUBSTANTIAL AMOUNTS OF OVERTIME BOTH PRIOR TO, AND AT THE END OF, THEIR SCHEDULED SHIFTS." (BAYLOR P. 357)

IN OUR DECISION OF B-158549, JANUARY 22, 1974, 53 COMP. GEN. 489, WE INDICATED THAT THIS OFFICE WOULD FOLLOW THE PRINCIPLES OF LAW AS SET FORTH IN BAYLOR. THEREFORE, SINCE THE STANDARDS OF LAW USED PRIOR TO BAYLOR TO DETERMINE THE PROPRIETY OF CLAIMS FOR OVERTIME COMPENSATION WERE ERRONEOUS, THE CORRECT STANDARDS AS SET OUT IN BAYLOR AND AS EXPLAINED IN OUR DECISION OF 53 COMP. GEN. 489, SUPRA, MUST NOW BE APPLIED TO APPEALS OF THOSE ADVERSE SETTLEMENTS MADE PRIOR TO BAYLOR, SUCH AS THOSE OF MR. PICKETT, MR. BLACKWELL, MR. SCHALLER AND MR. MORELAND. MOREOVER, SINCE ADMINISTRATIVE REPORTS ON CLAIMS FOR OVERTIME COMPENSATION WHICH WERE DEVELOPED PRIOR TO BAYLOR, DID NOT ADDRESS THE FACTS RELEVANT TO THE POINTS OF LAW RAISED BY BAYLOR, FURTHER REPORTS WHICH SUPPLY ANSWERS TO THE POINTS OF LAW RAISED IN BAYLOR MUST NOW BE OBTAINED BY THE EMPLOYING AGENCIES INVOLVED. THUS AN ASSESSMENT AS TO THE KNOWLEDGE AND/OR ENDORSEMENT OF THE INDIVIDUAL WHO HAD AUTHORITY TO ORDER OR APPROVE OVERTIME OF ANY REQUIREMENT THAT THE EMPLOYEE REPORT EARLY AND LEAVE LATE FOR WORK RELATED REASONS IS REQUIRED. IT IS ALSO PERTINENT TO CONSIDER ANY PROCEDURES GOVERNING THE ISSUANCE OF REGULATIONS RELEVANT TO THE OVERTIME PERFORMED WHICH WOULD REFLECT WHETHER THE INDIVIDUAL WITH AUTHORITY TO ORDER OR APPROVE OTERTIME SHOULD HAVE BEEN AWARD OF THE REPORTING REQUIREMENT.

IN THE PAST, OUR OFFICE HAS DEVELOPED THE RECORD AND APPLIED THE LAW AS SET OUT IN BAYLOR TO SIMILAR APPEALS FROM ADVERSE SETTLEMENTS OF CLAIMS FOR OVERTIME COMPENSATION MADE PRIOR TO BAYLOR. HOWEVER, THERE IS REALLY NO NEW LEGAL QUESTION INVOLVED IN THESE APPEALS AS THE LAW ON THE MATTER, I.E., THE CIRCUMSTANCES UNDER WHICH OVERTIME MAY BE COMPENSATED, IS NOW CLEAR. SINCE THESE APPEALS INVOLVE NO NEW QUESTIONS OF LAW WHICH SHOULD BE ADDRESSED BY THIS OFFICE, BUT RATHER INVOLVE THE APPLICATION OF THE BAYLOR STANDARD TO THE FACTS OF EACH CASE, THE EMPLOYING AGENCY RESPONSIBLE SHOULD NOW DEVELOP THE RECORD OF EACH CASE FURTHER TO DETERMINE WHETHER OR NOT THE APPROPRIATE OFFICIAL DID IN FACT AUTHORIZE OVERTIME. THEREFORE THE APPEALS OF MR. PICKETT, MR. BLACKWELL, MR. SCHALLER AND MR. MORELAND AND ALL APPEALS FROM SIMILAR PRE-BAYLOR SETTLEMENTS WHICH ARE RECEIVED IN THIS

OFFICE IN THE FUTURE WILL BE FORWARDED TO THE RESPECTIVE EMPLOYING AGENCY FOR DEVELOPMENT OF THE RECORD AND FOR A DETERMINATION OF THE MERITS OF THE SPECIFIC APPEAL IN ACCORDANCE WITH THE STANDARDS IN BAYLOR. THE EMPLOYING AGENCY HAS THE AUTHORITY TO PAY ANY APPEAL OF A PRE-BAYLOR SETTLEMENT FORWARDED TO THEM BY US IN WHICH IT HAS NO DOUBT AS TO THE LEGALITY OF PAYMENT UNDER THE RULE OF THE BAYLOR CASE. IF, NO FURTHER DEVELOPING THE RECORD OF ANY APPEAL, HOWEVER, THE EMPLOYING AGENCY STILL HAS DOUBTS AS TOT HE PROPRIETY OF PAYING THE EMPLOYEE FOR OVERTIME OR IF THE EMPLOYING AGENCY STILL FEELS PAYMENT SHOULD NOT BE MADE, THE APPEAL AND THE DEVELOPED RECORD SHOULD BE FORWARDED TO THE COMPTROLLER GENERAL FOR A DECISION.

WITH RESPECT TO THE CLAIM OF MR. BYRON W. MERCER, OUR TRANSPORTATION AND CLAIMS DIVISION HAD REQUESTED A REPORT FROM GSA AS TO WHETHER OR NOT THE OVERTIME CLAIMED BY MR. MERCER AND BY 23 OTHER CLAIMANTS EMPLOYED AT GSA'S REGION 4, WAS AUTHORIZED. THE TRANSPORTATION AND CLAIMS DIVISON ALSO REQUESTED A COMPLETE COMPUTATION OF ANY AMOUNTS FOUND DUE THE EMPLOYEES. THE REPORT FROM GSA TO OUR TRANSPORTATION AND CLAIMS DIVISION INCLUDED THE STATEMENT THAT OUR TRANSPORTATION AND CLAIMS DIVISION SHOULD -

"*** MAIL APPROPRIATE QUESTIONNAIRES TO THESE CLAIMANTS IN ORDER THAT THE REQUIRED INFORMATION CAN BE OBTAINED FOR COMPUTATION."

AS STATED ABOVE, THE STANDARDS FOR THE PAYMENT OF OVERTIME COMPENSATION AS SET OUT IN BAYLOR ARE CLEAR. THEREFORE IN REGARD TO MR. MERCER'S CLAIM, SINCE THE EMPLOYING AGENCY INVOLVED IS BEST SUITED TO DETERMINE THE PARTICULAR CIRCUMSTANCES THAT MAY HAVE EXISTED AT A GIVEN GUARD POST WHICH WOULD HAVE LED TO OVERTIME BEING PERFORMED, THE EMPLOYING AGENCY RESPONSIBLE, HERE GSA SHOULD ITSELF DISTRIBUTE THE NECESSARY QUESTIONNAIRES AND DEVELOP THE REQUISITE INFORMATION SO THAT AN APPROPRIATE COMPUTATION OF TIME COMPENSABLE MAY BE MADE.

ACCORDINGLY, MR. MERCER'S CLAIM AND ALL SIMILAR ORIGINAL CLAIMS BY GUARDS, OR OTHER PERSONNEL, FOR OVERTIME COMPENSATION WHICH ARE MADE PURSUANT TO BAYLOR FOR PERIODS OF TIME PRIOR TO THE EFFECTIVE DATE OF THE FAIR LABOR STANDARDS AMENDMENTS OF 1974, AND WHICH ARE RECEIVED BY US IN THE FUTURE, WILL BE FORWARDED TO THE RESPECTIVE EMPLOYING AGENCY SO THAT ALL THE NECESSARY INFORMATION MAY BE DEVELOPED BY THE AGENCY IN ACCORDANCE WITH THE STANDARDS IN BAYLOR.

THE APPEALS AND CLAIMS ARE ACCORDINGLY RETURNED TO THE RESPECTIVE EMPLOYING AGENCIES FOR APPROPRIATE DEVELOPMENT AND ACTION.