B-157562, DEC. 22, 1965

B-157562: Dec 22, 1965

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WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION COVERING PERIODS YOU WERE ASSIGNED TO WATCH DUTY AT YOUR PLACE OF ABODE INCIDENT TO YOUR EMPLOYMENT AS A FIRE CHIEF. YOUR REQUEST FOR REVIEW IS UNDERSTOOD TO BE PREDICATED UPON THE EVIDENCE ENCLOSED WITH YOUR LETTER. AUGUST AND SEPTEMBER 1961 AND THE OTHER MATTERS TO WHICH YOU REFER AS INDICATING THAT WATCH DUTY WAS SUBSTANTIALLY CONTRARY TO REGULATIONS AND RESTRICTIVE OF YOUR FREEDOM OF MOVEMENT. THERE SEEMS TO BE NO QUESTION THAT YOU WERE IN FACT ASSIGNED TO WATCH DUTY DURING THE PERIODS COVERED BY THE ENCLOSURES WITH YOUR LETTER AND DURING EARLIER PERIODS AS REFLECTED BY YOUR CLAIMS FILE. DOES NOT DISPUTE THE FACT THAT YOU WERE ASSIGNED TO WATCH DUTY.

B-157562, DEC. 22, 1965

TO MR. WALTER W. OLNEY:

YOUR LETTER OF NOVEMBER 12, 1965, WITH ENCLOSURES, ASKS OUR REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF OCTOBER 5, 1965, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION COVERING PERIODS YOU WERE ASSIGNED TO WATCH DUTY AT YOUR PLACE OF ABODE INCIDENT TO YOUR EMPLOYMENT AS A FIRE CHIEF, MANCHESTER ANNEX, DEPARTMENT OF THE NAVY, SEATTLE, WASHINGTON.

YOUR REQUEST FOR REVIEW IS UNDERSTOOD TO BE PREDICATED UPON THE EVIDENCE ENCLOSED WITH YOUR LETTER, VIZ., COPIES OF THE WATCH LIST ASSIGNING YOU TO WATCH DUTY ON VARIOUS DAYS DURING FEBRUARY, AUGUST AND SEPTEMBER 1961 AND THE OTHER MATTERS TO WHICH YOU REFER AS INDICATING THAT WATCH DUTY WAS SUBSTANTIALLY CONTRARY TO REGULATIONS AND RESTRICTIVE OF YOUR FREEDOM OF MOVEMENT.

THERE SEEMS TO BE NO QUESTION THAT YOU WERE IN FACT ASSIGNED TO WATCH DUTY DURING THE PERIODS COVERED BY THE ENCLOSURES WITH YOUR LETTER AND DURING EARLIER PERIODS AS REFLECTED BY YOUR CLAIMS FILE. OUR OFFICE SETTLEMENT OF OCTOBER 5, 1965, DOES NOT DISPUTE THE FACT THAT YOU WERE ASSIGNED TO WATCH DUTY; RATHER IT DISALLOWED YOUR CLAIM UPON THE GROUND THAT THE WATCH DUTY PERFORMED BY YOU AT YOUR HOME OR PLACE OF ABODE IS NOT COMPENSABLE WORK TIME UNDER ANY EXISTING STATUTE OR JUDICIAL INTERPRETATION OF THE LAW.

IN OUR DECISION OF JANUARY 19, 1961, B-144675, A COPY OF WHICH IS ENCLOSED, WE SO RULED IN REGARD TO PER ANNUM EMPLOYEES. ALSO, SEE THAT PART OF THE DECISION IN RAPP V. UNITED STATES, CT.CL. NO. 70-62, AND HAWKINS V. UNITED STATES, CT.CL. NO. 121-62, DECIDED OCTOBER 16, 1964, WHICH RULED ADVERSELY TO THE PLAINTIFFS CONCERNING WATCH TOURS PERFORMED AT THEIR HOMES, THE COURT EXPRESSING THE VIEW THAT IN SUCH CIRCUMSTANCES IT CANNOT BE SAID THAT THE EMPLOYEES SPENT THEIR TIME PREDOMINANTLY FOR THEIR EMPLOYER'S BENEFIT. THE RAPP CASE WAS CITED WITH APPROVAL IN THE RECENT DECISION OF THE COURT OF CLAIMS IN MOSS V. UNITED STATES, CT.CL. NO. 239-63, DECIDED DECEMBER 17, 1965, IN WHICH THE PLAINTIFF WAS "ON CALL" AT HIS HOME FOR TELEPHONE CALLS.

THE RECORD BEFORE US FAILS TO DISCLOSE ANY ALLEGATION BY YOU THAT WATCH ASSIGNMENTS INVOLVED ANY WORK ON YOUR PART OR RESULTED IN THE PERFORMANCE OF DUTY IN EMERGENCIES OR UPON THE HAPPENING OF CONTINGENCIES FOR WHICH YOU WERE NOT PAID. 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 WHEN NO SPECIFIC WORK IS PERFORMED, COMPENSATION MAY NOT BE ALLOWED FOR SUCH TIME.

THEREFORE, THE CONCLUSION REACHED IN OUR OFFICE SETTLEMENT OF OCTOBER 6, 1965, MUST BE SUSTAINED.