B-153010, MAR. 6, 1964

B-153010, MAR. 6, 1964

TO MR. VAUX OWEN, PRESIDENT, NATIONAL FEDERATION OF FEDERAL EMPLOYEES:

THIS REFERS TO YOUR LETTERS OF FEBRUARY 17, 1964, AND DECEMBER 3, 1963, WITH ENCLOSURES, CONCERNING OUR CLAIMS DIVISION SETTLEMENTS OF SEPTEMBER 5, 1962, WHICH DISALLOWED THE CLAIMS OF CERTAIN EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE, FOR COMPENSATION FOR THE TIME ALLEGED TO HAVE BEEN IN A COMPENSABLE "STANDBY STATUS" DURING THE PERIOD JANUARY 21, 1957, THROUGH MAY 13, 1959.

THE RECORD INDICATES THAT OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE IN BALTIMORE, MARYLAND, WERE REQUIRED (ON A DAILY ROTATION BASIS) TO BE IN A TELEPHONE ALERT STATUS AT THEIR HOMES FROM 12:01 A.M. TO 12:00 MIDNIGHT EACH DAY OF THE WEEK; ALSO, DURING WEEKDAYS THERE WAS NO STANDBY TIME BETWEEN THE HOURS OF 8 A.M. AND 5 P.M. IF THE OFFICE WAS OPEN. TWO OF THE EMPLOYEES IN SUPPORT OF THEIR CLAIMS FURNISHED A DUTY ROSTER FOR THE PERIOD FEBRUARY 28, 1957, THROUGH APRIL 6, 1957, SHOWING THE DAYS THEY WERE REQUIRED TO BE IN A TELEPHONE STANDBY DUTY STATUS. IT IS NOTED THAT THESE PARTICULAR EMPLOYEES WERE SCHEDULED FOR TELEPHONE STANDBY DUTY STATUS FOR ONLY 2 DAYS DURING THAT PERIOD. THE ROSTER SHOWS THAT THE TELEPHONE CALLS RECEIVED AT THE CUSTOM HOUSE SWITCHBOARD AFTER 5 P.M. ON WORKDAYS, OR ON SATURDAY, SUNDAY OR HOLIDAYS WERE TO BE REFERRED TO THE STANDBY OFFICER WHO WAS ON DUTY AT THAT PARTICULAR TIME.

THE MATTER OF COMPENSATION FOR STANDY SERVICES AT HOME WAS DIRECTED TO THE ATTENTION OF THE CHAIRMAN, COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES, BY OUR OFFICE AT THE TIME THE COMMITTEE WAS CONSIDERING THE PROPOSED LEGISLATION WHICH ULTIMATELY BECAME PUB.L. 763, APPROVED SEPTEMBER 1, 1954, AMENDING THE FEDERAL EMPLOYEES PAY ACT OF 1945.

IN OUR REPORT WE STATED AS FOLLOWS:

"ANOTHER SITUATION WHICH IT IS DEEMED PERTINENT TO INVITE TO THE ATTENTION OF THE COMMITTEE CONCERNS THE PRACTICE IN SOME OF THE DEPARTMENTS AND AGENCIES OF REQUIRING CERTAIN SPECIALIZED EMPLOYEES TO REMAIN IN A STANDBY STATUS AT THEIR HOMES INSTEAD OF THEIR PLACE OF WORK. IT IS UNDERSTOOD THAT THIS PRACTICE ORIGINATED IN ORDER TO AVOID THE ADDITIONAL COST OF KEEPING EMPLOYEES ON THE JOB TO REPAIR AND MAINTAIN COMPLICATED ELECTRONIC EQUIPMENT AND PAYING THEM OVERTIME COMPENSATION SINCE THEY MIGHT BE NEEDED ONLY FOR A SHORT PERIOD OF TIME DURING A PARTICULAR SHIFT. IF CALLED BACK TO DUTY SUCH EMPLOYEES NOW ARE PAID OVERTIME COMPENSATION ONLY FOR THE PERIOD ACTUALLY WORKED AND IF NOT CALLED RECEIVE NO COMPENSATION WHATSOEVER. THE EMPLOYEES APPARENTLY HAVE OBJECTED TO THIS ARRANGEMENT AND WHILE THE PROVISION IN THE BILL FOR A MINIMUM OF 2 HOURS OF OVERTIME COMPENSATION FOR EMPLOYEES CALLED BACK TO DUTY WILL HELP TO ALLEVIATE THE SITUATION, IT MAY BE THE COMMITTEE WOULD DESIRE TO RECOMMEND THAT SOME FORM OF COMPENSATION--- PREFERABLY TO BE AUTHORIZED IN THE DISCRETION OF THE AGENCY--- BE PROVIDED FOR EMPLOYEES WHO ARE REQUESTED TO REMAIN IN A STANDBY STATUS AT HOME WHICH COULD BE SIMILAR TO THAT NOW CONTAINED ON PAGES 14 AND 15 OF THE BILL WITH REFERENCE TO EMPLOYEES REMAINING IN A STANDBY STATUS WITHIN THE CONFINES OF THEIR OFFICIAL STATIONS.'

NOTWITHSTANDING THE ABOVE-QUOTED RECOMMENDATION, NO EXPRESS PROVISION WAS MADE IN THE LEGISLATION AS FINALLY ENACTED, OR IN ANY SUBSEQUENT STATUTE, FOR THE PAYMENT OF COMPENSATION FOR STANDBY SERVICE OTHER THAN THAT PERFORMED AT OR WITHIN THE CONFINES OF AN EMPLOYEE'S OFFICIAL STATION. HOWEVER, THE CIVIL SERVICE COMMISSION UNDER ITS AUTHORITY TO PRESCRIBE REGULATIONS COVERING THE PAYMENT OF PREMIUM COMPENSATION ON AN ANNUAL BASIS TO EMPLOYEES REQUIRED TO REMAIN IN A STANDY STATUS AT OR WITHIN THE CONFINES OF THEIR OFFICIAL STATIONS AS AUTHORIZED BY SECTION 208 (A) OF PUB.L. 763, 5 U.S.C. 926, HAS DEFINED "AT OR WITHIN THE CONFINES OF AN EMPLOYEE'S STATION" TO MEAN:

"IN AN EMPLOYEE'S LIVING QUARTERS, WHEN DESIGNATED BY THE DEPARTMENT AS HIS DUTY STATION AND WHEN HIS WHEREABOUTS IS NARROWLY LIMITED AND HIS ACTIVITIES ARE SUBSTANTIALLY RESTRICTED. THIS CONDITION EXISTS ONLY DURING PERIODS WHEN AN EMPLOYEE IS REQUIRED TO REMAIN AT HIS QUARTERS AND IS REQUIRED TO HOLD HIMSELF IN A STATE OF READINESS TO ANSWER CALLS FOR HIS SERVICES. THIS LIMITATION ON AN EMPLOYEE'S WHEREABOUTS AND ACTIVITIES IS DISTINGUISHED FROM THE LIMITATION PLACED ON AN EMPLOYEE WHO IS SUBJECT TO CALL OUTSIDE HIS REGULAR HOURS OF DUTY BUT MAY LEAVE HIS QUARTERS, PROVIDED HE ARRANGES FOR SOMEONE ELSE TO RESPOND TO CALLS OR LEAVES A TELEPHONE NUMBER BY WHICH HE CAN BE REACHED SHOULD HIS SERVICES BE REQUIRED.'

SEE SECTION 25.253 (B) (3) OF THE COMMISSION REGULATIONS (5 CFR).

IN A REPORT TO OUR OFFICE THE BUREAU OF IMMIGRATION AND NATURALIZATION SERVICE SAID THAT THE CLAIMANTS WHEN ON TELEPHONE STANDBY DUTY WERE FREE TO TELL THE ANSWERING SERVICE WHERE THEY WOULD BE, OR ASK SOME OTHER OFFICERS TO ACCEPT CALLS IN THEIR STEAD; ALSO, THAT THE ACTIVITIES OF THE CLAIMANTS WERE REGARDED AS SIMILAR TO THOSE DESCRIBED IN THE LAST SENTENCE OF THE REGULATIONS QUOTED ABOVE AND THUS CONSIDERED NONQUALIFYING FOR COMPENSATION PURPOSES.

SINCE PREMIUM COMPENSATION ON AN ANNUAL BASIS AS AUTHORIZED BY SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954 (PUB.L. 763), IS DISCRETIONARY WITH THE ADMINISTRATIVE OFFICE, WHICH OFFICE HAS NOT TAKEN ANY ACTION (SUBJECT TO APPROVAL OF THE CIVIL SERVICE COMMISSION) TO PROVIDE FOR PAYMENT OF SUCH PREMIUM COMPENSATION, WE FIND NO BASIS FOR ALLOWANCE OF ANY OF THE CLAIMS UNDER THAT STATUTE. MOREOVER, WE ARE NOT AWARE OF ANY OTHER BASIS FOR ALLOWANCE OF THE CLAIMS UNDER THE RELATED CIRCUMSTANCES. THE DISALLOWANCES OF SUCH CLAIMS IS, THEREFORE, SUSTAINED.

CONCERNING THE CASE OF CAGLE V. UNITED STATES, CT.CL. NO. 34-59, YOU ARE ADVISED THAT WHILE DECISIONS OF THE COURT OF CLAIMS ARE NOT BINDING ON OUR OFFICE WE DO GENERALLY FOLLOW THE RULINGS IN SUCH CASES. HOWEVER, THE CABLE CASE DID NOT INVOLVE A DECISION OF THE COURT ON THE LEGAL ISSUES INVOLVED. RATHER, THE COURT MERELY APPROVED PAYMENT OF A CERTAIN AMOUNT AS STIPULATED BY THE PARTIES TO THE SUIT. THEREFORE, THAT CASE MAY NOT BE VIEWED AS A PRECEDENT. IN ANY EVENT, THE QUESTION IN THE CABLE CASE WAS WHETHER THE EARLY REPORTING FOR WORK HAD BEEN PROPERLY ORDERED WHEREAS HERE THE QUESTION IS WHETHER CERTAIN STANDBY SERVICES PROPERLY ORDERED CONSTITUTED A TYPE OF WORK FOR WHICH COMPENSATION IS AUTHORIZED. INDICATED ABOVE, THAT QUESTION IS ANSWERED IN THE NEGATIVE.