B-158388, MAY 2, 1966

B-158388, MAY 2, 1966

TO MR. RUDOLPH LOUCH, BMC, USN (RET:

REFERENCE IS MADE TO YOUR CLAIM FOR OVERTIME COMPENSATION DURING THE PERIOD MARCH 10, 1954, TO JUNE 1, 1960, WHILE EMPLOYED AT THE U.S. NAVAL COMMUNICATION STATION, SAN DIEGO, CALIFORNIA, AND THE U.S. NAVAL COMMUNICATION TRAINING CENTER, IMPERIAL BEACH, CALIFORNIA, WHICH WAS DISALLOWED BY OUR OFFICE SETTLEMENT OF OCTOBER 12, 1964.

YOU CLAIM OVERTIME COMPENSATION DURING EMPLOYMENT AT THE U.S. NAVAL COMMUNICATION STATION, SAN DIEGO, CALIFORNIA, FROM MARCH 10, 1954, THROUGH JUNE 30, 1957, AT WHICH TIME YOU WERE TRANSFERRED TO THE ROLLS OF THE U.S. NAVAL COMMUNICATION TRAINING CENTER, IMPERIAL BEACH, CALIFORNIA. YOU ALSO CLAIM OVERTIME COMPENSATION DURING EMPLOYMENT AT THE TRAINING CENTER FROM JULY 1, 1957, TO JUNE 1, 1960.

YOU CLAIM THE OVERTIME COMPENSATION FOR 15 MINUTES DAILY EARLY REPORTING PRIOR TO THE BEGINNING OF YOUR REGULAR EIGHT-HOUR SHIFT. YOU SAY THAT GUARDS WERE REQUIRED TO REPORT 15 MINUTES EARLY, THAT PRIOR TO JANUARY 1960 GUARDS ON DUTY WERE NOT RELIEVED FOR LUNCH OR PERMITTED A LUNCH PERIOD, AND THAT MEALS WERE EATEN IN BETWEEN DUTIES OR ON THE RUN. YOU ALSO ALLEGE THAT A REQUIREMENT FOR EARLY REPORTING WAS INCLUDED IN WRITTEN DIRECTIVES. IN SUPPORT OF THIS ALLEGATION YOU HAVE SUBMITTED A LETTER FROM MR. R. M. KIMBLEY. MR. KIMBLEY STATES THAT IN 1948, WHILE PERFORMING COLLATERAL DUTIES AS THE SECURITY OFFICER AT THE NAVAL RADIO STATION, IMPERIAL BEACH, CALIFORNIA, HE ORIGINATED A STATION INSTRUCTION FOR THE SIGNATURE OF THE OFFICER-IN CHARGE WHICH DIRECTED THAT THE ONCOMING GUARD FORCE SHIFT SHOULD REPORT 15 MINUTES PRIOR TO THE TIME OF THEIR SCHEDULED SHIFT. MR. KIMBLEY ALSO STATES THAT THE STATION INSTRUCTION WAS SIGNED BY THE OFFICER-IN-CHARGE AND APPROVED BY THE COMMANDING OFFICER, U.S. NAVAL COMMUNICATION STATION, ELEVENTH NAVAL DISTRICT, SAN DIEGO, CALIFORNIA.

THE DEPARTMENT OF THE NAVY HAS INFORMED US THAT THERE IS NO RECORD IN THE ELEVENTH NAVAL DISTRICT OF THE INSTRUCTION REFERRED TO BY MR. KIMBLEY. MOREOVER, MR. KIMBLEY'S STATEMENT THAT HE ORIGINATED THIS INSTRUCTION IN 1948 FURNISHES NO PROOF THAT THE SAME OR SIMILAR WRITTEN INSTRUCTIONS EXISTED BETWEEN MARCH 10, 1954, AND JUNE 1, 1960, THE PERIOD FOR WHICH OVERTIME IS CLAIMED. THEREFORE, MR. KIMBLEY'S LETTER IS NOT SUFFICIENT TO SUPPORT YOUR CLAIM. THE DEPARTMENT OF THE NAVY ALSO HAS REPORTED THAT YOUR PERSONNEL FILE DOES NOT INCLUDE INFORMATION OR DIRECTIVES REGARDING MANDATORY REPORTING TO DUTY PRIOR TO REGULAR SHIFT TIMES.

IN REGARD TO THE PERIOD MARCH 10, 1954, TO JUNE 30, 1957, FOR WHICH OVERTIME IS CLAIMED AT THE U.S. NAVAL COMMUNICATION STATION, SAN DIEGO, THE DEPARTMENT HAS FURNISHED US THE INFORMATION HEREINAFTER SET FORTH. THE ESTABLISHED HOURS OF WORK FOR THE CIVILIAN GUARDS WERE 0800-1600, 1600 -2400 AND 2400-0800, THREE SHIFTS OF EIGHT HOURS EACH. THERE WERE NO OFFICIALLY PROMULGATED INSTRUCTIONS, WRITTEN OR ORAL, WHICH REQUIRED ANY INDIVIDUAL TO REPORT ANY EARLIER THAN 0800, 1600 OR 2400. AT TIMES CIVILIAN GUARDS ARRANGED BETWEEN THEMSELVES TO RELIEVE EACH OTHER IN ADVANCE OF THE OFFICIALLY STATED TIMES, WHICH ARRANGEMENTS WERE MADE FOR THE CONVENIENCE OF THE INDIVIDUALS CONCERNED. WHEN A GUARD RELIEVED THE WATCH EARLY, HE HIMSELF WAS RELIEVED EARLY AT THE END OF HIS SHIFT. WAS NOT UNUSUAL FOR VARIOUS INDIVIDUALS TO RELIEVE ONE ANOTHER FROM 15 TO 30 MINUTES EARLY. THIS PRACTICE WAS KNOWN TO LINE SUPERVISORS AND MANAGEMENT PERSONNEL AND ACCEPTED AS BEING SATISFACTORY. SUCH ARRANGEMENTS ARE RATHER COMMON TO ANY NUMBER OF SHIFT-ROTATING TYPE WORK ASSIGNMENTS AND ARE NOT UNIQUE TO A GUARD FORCE. PERSONNEL INVOLVED WERE ALWAYS ALLOWED TO WEAR THEIR UNIFORMS BETWEEN THEIR PLACE OF RESIDENCE AND PLACE OF EMPLOYMENT SINCE THESE UNIFORMS WERE, AND ARE, CONSIDERED SUITABLE FOR STREET WEAR. ALTHOUGH THERE WERE NO LOCKER OR DRESSING ROOMS SPECIFICALLY PROVIDED FOR THIS PURPOSE, SOME ELECTED TO CHANGE AFTER REPORTING ON STATION AND PRIOR TO RELIEVING THE WATCH. EVEN THOUGH THE ESTABLISHED HOURS OF WORK FOR EACH SHIFT, EIGHT HOURS, DID NOT PROVIDE FOR A LUNCH BREAK, IT WAS THE GENERAL PRACTICE TO ALLOW SUFFICIENT FREE TIME AWAY FROM DUTY DURING MEAL HOURS. THIS TIME VARIED FROM 15 TO 30 MINUTES. MOTORIZED PATROLS WERE NOT ON A FIXED TIME SCHEDULE. IT WAS THE GENERAL PRACTICE FOR THOSE GUARDS ASSIGNED TO MOTORIZED PATROLS TO STOP AT THE GENERAL MESS DURING MEAL HOURS AND EAT; CASH SALES TO THESE PERSONNEL WERE AUTHORIZED. SINCE THE GUARD ON DUTY AT THE STATIONARY POST WAS ALTERNATED WITH THOSE ON THE MOTORIZED PATROLS, HE ALSO COULD AVAIL HIMSELF OF THIS PRIVILEGE DURING MEAL HOURS. SOME GUARDS ELECTED TO BRING THEIR OWN LUNCH IN WHICH CASE THEY ATE THEIR LUNCH EITHER IN THE VEHICLE OF THE MOTORIZED PATROL OR AT THE STATIONARY POST. NO COMPLAINTS CONCERNING INADEQUATE FREE TIME MEAL PERIODS WERE KNOWN TO HAVE OCCURRED. AT NO TIME WAS MANAGEMENT REQUESTED TO LENGTHEN THE SHIFT TO (8 1/2) HOURS TO SPECIFICALLY PROVIDE FOR A FREE TIME MEAL PERIOD. ALSO, WHILE THERE WERE NO SPECIFICALLY AUTHORIZED RELIEF PERIODS DURING A SHIFT FOR PURPOSES OF COFFEE BREAKS OR PERSONAL NECESSITY, THERE WAS AN AMPLE AND LIBERAL AMOUNT OF TIME FOR SUCH PURPOSES. IN THE INFREQUENT CASES WHERE GUARDS WERE REQUIRED TO REMAIN ON DUTY BEYOND THEIR REGULAR SHIFT HOURS THE DEPARTMENT SAYS THAT OVERTIME COMPENSATION WAS PAID OR COMPENSATORY TIME AUTHORIZED.

WE FIND, THEREFORE, THAT THE EVIDENCE OF RECORD DOES NOT ESTABLISH THAT EARLY REPORTING BY THE GUARDS WAS OFFICIALLY REQUIRED. RATHER, IT APPEARS THAT ANY EARLY REPORTING WAS A MATTER OF DISCRETION WITH THE GUARDS AND WAS COMPENSATED FOR BY EARLY RELIEF FROM THE SHIFT, AND THAT FREE TIME FOR LUNCH WAS ALLOWED DURING THE EIGHT-HOUR SHIFT ALTHOUGH THE SHIFT WAS SCHEDULED FOR EIGHT HOURS RATHER THAN FOR EIGHT AND ONE-HALF HOURS TO PROVIDE AN OFFICIAL LUNCH PERIOD. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR THE PERIOD MARCH 10, 1954, TO JUNE 30, 1957, IS SUSTAINED.

YOU ALSO CLAIM OVERTIME COMPENSATION FOR EARLY REPORTING BETWEEN JULY 1, 1957, AND JUNE 1, 1960, WHILE EMPLOYED AS A GUARD AT THE U.S. NAVAL COMMUNICATION TRAINING CENTER, IMPERIAL BEACH, CALIFORNIA. THIS CENTER HAS BEEN RELOCATED AT PENSACOLA, FLORIDA. THE DEPARTMENT OF THE NAVY HAS REPORTED THAT, AS YOU HAVE SAID, THE RECORDS FOR THE GUARDS WOULD NOT HAVE BEEN FORWARDED TO PENSACOLA AND THAT THERE ARE NONE THERE. A SEARCH HAS BEEN MADE BY THE DEPARTMENT WITHOUT SUCCESS FOR ANY RECORDS WHICH MAY STILL EXIST. AS STATED ABOVE, YOUR PERSONNEL RECORD CONTAINS NO INFORMATION OR DIRECTIVES REGARDING MANDATORY EARLY REPORTING. THE DEPARTMENT HAS ALSO PREVIOUSLY REPORTED THAT DISCUSSION WITH OFFICIALS AT THE SAN DIEGO STATION INDICATES A STRONG POSSIBILITY THAT THE REPORTING HABITS OF THE GUARDS AT BOTH ACTIVITIES WERE IDENTICAL. IN VIEW OF THIS INFORMATION, THE FACT THAT THE DEPARTMENT OF THE NAVY HAS SEARCHED FOR AND BEEN UNABLE TO LOCATE RECORDS PERTAINING TO THIS PERIOD, AND THE LACK OF SUBMISSION OF POSITIVE EVIDENCE BY YOU TO SUPPORT YOUR ALLEGATIONS, WE BELIEVE FURTHER CONSIDERATION OF YOUR CLAIM FOR THE PERIOD JULY 1, 1957, TO JUNE 1, 1960, IS NOT WARRANTED UNLESS YOU SUBMIT SUBSTANTIAL RELEVANT EVIDENCE IN SUPPORT OF YOUR CLAIM. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM FOR THE PERIOD JULY 1, 1957, TO JUNE 1, 1960, IS ALSO SUSTAINED.