B-153819, JUN. 17, 1964

B-153819, JUN. 17, 1964

TO MR. J. M. CALHOON:

BY LETTER DATED FEBRUARY 24, 1964, SENT US IN YOUR BEHALF, MR. DAVID SCRIBNER OF PRESSMAN AND SCRIBNER, NEW YORK CITY, APPEALED OUR DISALLOWANCE DATED JANUARY 14, 1964, OF THE CLAIM OF MR. CHARLES R. ROOF FOR OVERTIME COMPENSATION. MR. ROOF IS A WAGE BOARD EMPLOYEE AND A BOAT GROUP LICENSED MARINE CAPTAIN STATIONED AT THE NAVAL ORDNANCE LABORATORY TEST FACILITY AT FORT LAUDERDALE, FLORIDA.

THE SCHEDULED HOURS OF WORK FOR BOAT GROUP EMPLOYEES ARE FROM 0730 TO 1600 HOURS, MONDAY THROUGH FRIDAY, AN 8 1/2-HOUR PERIOD, WITH 30 MINUTES EACH DAY FOR A LUNCH PERIOD. MR. ROOF'S CLAIM IS FOR OVERTIME COMPENSATION FOR ONE-HALF HOUR WITHIN THE SCHEDULED PERIOD OF 0730 TO 1600 HOURS.

THE ALLEGED GROUNDS UPON WHICH THE REQUEST FOR RECONSIDERATION OF THE CLAIM IS BASED ARE THAT NO DEFINITE TIME IS SET ASIDE FOR LUNCH; THAT MR. ROOF DOES NOT HAVE AN UNINTERRUPTED LUNCH PERIOD FREE FROM DUTY, BUT ON THE CONTRARY, IS CONTINUOUSLY ON DUTY AND IS NOT GIVEN ANY RELIEF FOR MEALS; THAT HE IS THE CAPTAIN OF THE YDT-9 AND AS SUCH IS SOLELY RESPONSIBLE FOR THE SAFETY AND OPERATION OF THE SHIP UNTIL EXPRESSLY RELIEVED OF THIS RESPONSIBILITY BY DULY CONSTITUTED AUTHORITY; AND, THAT HIS CLAIM IS NOT MERELY BASED ON THE FACT HE WAS UNABLE TO LEAVE THE VESSEL BUT ON THE FACT THAT HE WAS ACTUALLY WORKING DURING THE LUNCH PERIOD. ALBRIGHT V. UNITED STATES, CT.CL.NO. 263-61, APRIL 5, 1963, IS CITED IN SUPPORT OF MR. ROOF'S CLAIM. ALSO, PORTIONS OF TWO COLLECTIVE BARGAINING AGREEMENTS BETWEEN COMMERCIAL CARRIERS AND MARITIME LABOR UNIONS ARE QUOTED AS EXAMPLES OF PREVAILING MARITIME PRACTICES, NAMELY, SECTION 15 OF THE DRY CARGO AGREEMENT WITH MEBA DISTRICT NO. 1, AND ARTICLE XX OF MSTSLANTAREA AGREEMENT WITH MEBA.

WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE NAVY THAT MR. ROOF'S DUTIES ARE PERFORMED ON HARBOR AND INLAND WATERS, AS OPPOSED TO DEEP WATER, AND THAT, THEREFORE, THE REGULATIONS APPLICABLE HERE ARE THE NAVAL CIVILIAN PERSONNEL INSTRUCTIONS, NOT THE CIVILIAN MARINE PERSONNEL INSTRUCTIONS, WHICH APPLY TO ALL CIVIL SERVICE EMPLOYEES DIRECTLY EMPLOYED BY MSTS IN MARINE POSITIONS EXCEPT THOSE COMPENSATED UNDER LOCAL NATIONAL WAGE SCHEDULES.

MR. ROOF'S CLAIM COVERS THE PERIOD OCTOBER 21, 1959, TO DECEMBER 13, 1963. NCPI 85.2-1K, JUNE 13, 1958; NCPI 610.2-1K, JULY 1960; AND NCPI 610.2-1K, NOVEMBER 15, 1961. CURRENTLY IN EFFECT, CONTAIN SIMILAR PROVISIONS. THE CURRENT REGULATION PROVIDES:

"NORMALLY, DURING EACH 8-HOUR SHIFT EMPLOYEES WILL BE ALLOWED A SPECIFIED PERIOD OF TIME OFF TO EAT LUNCH. A LUNCH PERIOD IS NON-WORK TIME FOR WHICH NEITHER BASIC NOR OVERTIME COMPENSATION IS PAYABLE. WHEN A LUNCH PERIOD IS SET ASIDE, THE LENGTH OF THE SHIFT OR WORKDAY WILL BE EXTENDED BY THE LENGTH OF THE NON-WORK PERIOD. IN SOME TYPES OF JOBS IT MAY NOT BE ADMINISTRATIVELY DESIRABLE TO ALLOW A SPECIFIED PERIOD OF TIME OFF FOR LUNCH. FOR EXAMPLE, IT MAY BE DESIRABLE TO AVOID OVERLAPPING SHIFTS WHEN NIGHT SHIFTS ARE EMPLOYED OR THE JOB MAY REQUIRE THE CONSTANT ATTENTION OR AVAILABILITY OF THE EMPLOYEE WITHOUT BEING RELIEVED FOR LUNCH. IN THESE TYPES OF CASES, IT IS PROPER TO SCHEDULE SHIFTS WITHOUT A LUNCH PERIOD. UNDER SUCH CIRCUMSTANCES, THE EMPLOYEE MAY BE PERMITTED TO EAT LUNCH ON THE JOB WHEN IT IS POSSIBLE TO DO SO WITHOUT STOPPING OR INTERRUPTING HIS WORK. WHEN NO LUNCH PERIOD IS SCHEDULED, THE SCHEDULE SHALL SO INDICATE.'

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT MR. ROOF WAS GIVEN A LUNCH PERIOD FREE FROM DUTY OTHER THAN IN AN EMERGENCY SITUATION. WHILE IT IS ALLEGED THAT THE CLAIMANT IS CONTINUOUSLY ON DUTY AND IS NOT GIVEN ANY RELIEF FOR MEALS, NO PROOF HAS BEEN SUBMITTED TO SUPPORT THIS ALLEGATION. IT IS AN ESTABLISHED RULE OF THIS OFFICE THAT WHERE THERE IS A CONFLICT BETWEEN THE FACTS STATED BY THE ADMINISTRATIVE OFFICE AND A CLAIMANT, THE FACT STATED BY THE ADMINISTRATIVE OFFICE ARE ACCEPTED AS CORRECT IN THE ABSENCE OF PROOF TO THE CONTRARY. 37 COMP. GEN. 696, 699. ALSO, THE FACT THAT THE CLAIMANT HAD TO EAT ON THE BOAT IS NOT CONTROLLING. IN VIEW OF THE ABOVE, MR. ROOF'S CLAIM IS NOT ALLOWABLE ON THE BASIS OF THE PRESENT RECORD.

THEREFORE, THE DISALLOWANCE OF HIS CLAIM WAS CORRECT AND IS HEREBY SUSTAINED.