B-155679, DEC. 14, 1964

B-155679: Dec 14, 1964

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WHICH IS BEING TREATED AS A REQUEST FOR REVIEW OF OUR OFFICE SETTLEMENT DATED JULY 14. YOU ALLEGE THAT YOU WERE REQUIRED TO REPORT 30 MINUTES BEFORE THE START OF YOUR REGULAR TOUR OF DUTY EACH DAY SO THAT YOU COULD RECEIVE TRANSPORTATION TO YOUR ASSIGNED POST. THE PETITIONERS WERE AWARDED OVERTIME COMPENSATION FOR 15 MINUTES DAILY BECAUSE THEY WERE REQUIRED BY AN AGENCY REGULATION TO REPORT 15 MINUTES PRIOR TO THE START OF THEIR REGULAR DAILY TOUR OF DUTY. GOVERNMENT TRANSPORTATION LEAVING THE POLICE STATION APPROXIMATELY 15 MINUTES PRIOR TO THE START OF THE SHIFT WAS FURNISHED. THE USE THEREOF WAS NOT MANDATORY. IT WAS THE RESPONSIBILITY OF THE EMPLOYEE TO BE AT HIS POST OF DUTY AT THE BEGINNING OF HIS SHIFT BY WHATEVER MEANS OF CONVEYANCE HE CHOSE TO UTILIZE.

B-155679, DEC. 14, 1964

TO MR. HUXLEY A. ROSEBERRY:

THIS REFERS TO YOUR LETTER OF JUNE 15, 1964, RECEIVED IN THIS OFFICE ON OCTOBER 28, 1964, FROM THE U.S. NAVY FINANCE CENTER, WHICH IS BEING TREATED AS A REQUEST FOR REVIEW OF OUR OFFICE SETTLEMENT DATED JULY 14, 1961, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR OVERTIME WORK ALLEGEDLY PERFORMED BY YOU DURING THE PERIOD MAY 19, 1957, THROUGH MARCH 22, 1959, WHILE EMPLOYED AS A GUARD, GS-3 AT THE U.S. NAVAL AIR STATION, NORTH ISLAND, SAN DIEGO, CALIFORNIA.

YOU ALLEGE THAT YOU WERE REQUIRED TO REPORT 30 MINUTES BEFORE THE START OF YOUR REGULAR TOUR OF DUTY EACH DAY SO THAT YOU COULD RECEIVE TRANSPORTATION TO YOUR ASSIGNED POST. IN SUPPORT OF YOUR CLAIM FOR OVERTIME YOU REFER TO " A RECENT DECISION OF THE U.S. COURT OF CLAIMS," WHICH WE ASSUME TO BE THE CASE OF MACK N. ALBRIGHT ET AL. V. UNITED STATES, CT.CL. NO. 263-61, AND ROBERT B. BAKER ET AL. V. UNITED STATES, CT.CL. NO. 323-61 (CONSOLIDATED FOR THE PURPOSE OF JUDGMENT), DECIDED APRIL 5, 1963.

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911, PROVIDES FOR THE PAYMENT OF OVERTIME WHEN OFFICIALLY ORDERED OR APPROVED. IN THE TWO CASES CITED ABOVE, THE PETITIONERS WERE AWARDED OVERTIME COMPENSATION FOR 15 MINUTES DAILY BECAUSE THEY WERE REQUIRED BY AN AGENCY REGULATION TO REPORT 15 MINUTES PRIOR TO THE START OF THEIR REGULAR DAILY TOUR OF DUTY. HOWEVER, SUCH A SITUATION DID NOT EXIST IN YOUR CASE.

YOUR ADMINISTRATIVE OFFICE HAS REPORTED THAT AT THE TIME OF YOUR EMPLOYMENT, THE AGENCY INSTRUCTIONS REQUIRED CIVILIAN GUARD PERSONNEL TO BE AT THE ASSIGNED POST OR PLACE OF DUTY, READY TO ASSUME THEIR DUTIES AT THE SPECIFIED TIME. GOVERNMENT TRANSPORTATION LEAVING THE POLICE STATION APPROXIMATELY 15 MINUTES PRIOR TO THE START OF THE SHIFT WAS FURNISHED, BUT THE USE THEREOF WAS NOT MANDATORY. IT WAS THE RESPONSIBILITY OF THE EMPLOYEE TO BE AT HIS POST OF DUTY AT THE BEGINNING OF HIS SHIFT BY WHATEVER MEANS OF CONVEYANCE HE CHOSE TO UTILIZE. THUS, IT APPEARS THAT IF IN FACT YOU DID REPORT 15 MINUTES BEFORE YOUR ACTUAL DUTY BEGAN, IT WAS NOT IN COMPLIANCE WITH ANY ADMINISTRATIVE REGULATION, INSTRUCTION OR REQUIREMENT, BUT THAT YOU DID SO IN ORDER TO AVAIL YOURSELF OF THE GOVERNMENT-FURNISHED TRANSPORTATION TO YOUR POST OR PLACE OF ASSIGNMENT.

THE EVIDENCE OF RECORD IN YOUR CASE DOES NOT SUPPORT YOUR CONTENTION THAT YOU WERE ADMINISTRATIVELY "REQUIRED" TO REPORT 30 MINUTES PRIOR TO THE START OF YOUR SHIFT EACH DAY. ACCORDINGLY, YOU ARE NOT ENTITLED TO OVERTIME COMPENSATION UNDER SECTION 201 OF THE ACT OF 1945, SUPRA AND THE SETTLEMENT OF JULY 14, 1961, IS SUSTAINED.