B-158494, APR. 28, 1966

B-158494: Apr 28, 1966

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JOE REID: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4. REQUESTING RECONSIDERATION OF HIS CLAIM FOR OVERTIME COMPENSATION FOR STANDBY DUTY ALLEGED TO HAVE BEEN PERFORMED BETWEEN AUGUST 3. WHICH WAS DISALLOWED BY OFFICE SETTLEMENT DATED MAY 24. WAS ASSIGNED TO STANDBY TELEPHONE DUTY AT DIFFERENT TIMES BETWEEN AUGUST 3. THE IMMIGRATION AND NATURALIZATION SERVICE INFORMED US AT THE TIME HIS CLAIM WAS LAST CONSIDERED THAT IT HAD NOT FOUND IT NECESSARY TO DESIGNATE SUCH A POSITION FOR PREMIUM COMPENSATION AS PROVIDED IN SECTION 401/1) OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945. THEY STATED THAT SINCE THE CLAIMANT WAS FREE TO TELL THE ANSWERING SERVICE WHERE HE WOULD BE OR TO ASK SOME OTHER OFFICER TO ACCEPT CALLS IN HIS STEAD THE ASSIGNMENT WAS NOT PERFORMED "AT OR WITHIN THE CONFINES OF HIS STATION" AS DEFINED IN 5 CFR 25.253/B) (3) (1961) AS FOLLOWS: "IN AN EMPLOYEE'S LIVING QUARTERS.

B-158494, APR. 28, 1966

TO MR. JOE REID:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4, 1966, AS ATTORNEY FOR MR. WALTER R. WELLS, REQUESTING RECONSIDERATION OF HIS CLAIM FOR OVERTIME COMPENSATION FOR STANDBY DUTY ALLEGED TO HAVE BEEN PERFORMED BETWEEN AUGUST 3, 1961, AND JANUARY 21, 1962, AS AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, WHICH WAS DISALLOWED BY OFFICE SETTLEMENT DATED MAY 24, 1962.

MR. WELLS, WHILE SERVING IN THE CAPACITY OF SUPERVISORY IMMIGRATION INSPECTOR, WAS ASSIGNED TO STANDBY TELEPHONE DUTY AT DIFFERENT TIMES BETWEEN AUGUST 3, 1961, AND JANUARY 21, 1962, AND DIRECTED TO BE AVAILABLE FOR TELEPHONE CALLS AT HIS HOME DURING THE ASSIGNED TIMES. THE IMMIGRATION AND NATURALIZATION SERVICE INFORMED US AT THE TIME HIS CLAIM WAS LAST CONSIDERED THAT IT HAD NOT FOUND IT NECESSARY TO DESIGNATE SUCH A POSITION FOR PREMIUM COMPENSATION AS PROVIDED IN SECTION 401/1) OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926/1), WHICH PROVIDES THAT:

"THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, PROVIDE THAT---

"/1) ANY OFFICER OR EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK, SHALL RECEIVE PREMIUM COMPENSATION FOR SUCH DUTY ON AN ANNUAL BASIS IN LIEU OF PREMIUM COMPENSATION PROVIDED BY ANY OTHER PROVISIONS OF THIS CHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF HIS REGULARLY SCHEDULED WEEKLY TOUR. * * *"

ALSO, THEY STATED THAT SINCE THE CLAIMANT WAS FREE TO TELL THE ANSWERING SERVICE WHERE HE WOULD BE OR TO ASK SOME OTHER OFFICER TO ACCEPT CALLS IN HIS STEAD THE ASSIGNMENT WAS NOT PERFORMED "AT OR WITHIN THE CONFINES OF HIS STATION" AS DEFINED IN 5 CFR 25.253/B) (3) (1961) AS FOLLOWS:

"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.'

IN ANSWER TO THIS YOU SAY THAT:

"* * * IT IS APPARENT THAT THE INDIVIDUALS WHO -ADMINISTRATIVELY REPORTED" THIS FACT WERE NOT COMPLETELY AWARE OF HOW THE MATTER WAS BEING HANDLED IN THE LOCAL DISTRICT OFFICE OF THE U.S. IMMIGRATION AND NATURALIZATION SERVICE. IT IS TRUE THAT EXHIBIT A AND EXHIBIT B REFERRED TO THE ANSWERING SERVICE. A LIST OF NAMES WAS SUBMITTED TO THE ANSWERING SERVICE, AND UPON RECEIPT OF ANY CALLS THE OPERATOR CALLED ONE OF THE MEN ON THE LIST TO GIVE HIM THE CALL. HOWEVER, THE PERSONS WHO WERE GIVEN A SPECIFIC LETTER AND ASSIGNED TO STANDBY DUTY WERE REQUIRED UNDER INSTRUCTIONS TO BE AVAILABLE AT THEIR HOME AT ALL TIMES UNTIL THE PERIOD OF THEIR DETAIL WAS TERMINATED. THE "ANSWERING SERVICE" CALLS WERE OF A MORE LOCAL NATURE AND COULD BE HANDLED BY ANYONE ON THE "ANSWERING SERVICE" LIST BUT THE ONES WHO WERE SPECIFICALLY NOTIFIED BY LETTER TO BE AVAILABLE WERE ORDERED TO BE AVAILABLE TO ACCEPT CALLS THAT WOULD BE MADE DIRECTLY TO THEM THOUGH THE CENTRAL OFFICE OF THE U.S. IMMIGRATION AND NATURALIZATION SERVICE. MR. WELLS WAS IN THIS GROUP WHOSE MOVEMENT WAS COMPLETELY RESTRICTED AND HE DID NOT HAVE THE LIBERTY TO MOVE ABOUT AS INDICATED BY THE ADMINISTRATIVE REPORT THAT YOU RECEIVED. THE ACE ANSWERING SERVICE AND THE STANDBY GROUP WERE TWO DIFFERENT AND DISTINCT GROUPS ASSIGNED TO DIFFERENT RESPONSIBILITIES AND EACH WAS COMPLETELY APART AND COMPLETELY DIFFERENT FROM THE OTHER.'

WE DO NOT FIND THIS STATMENT SUFFICIENT BY ITSELF TO ESTABLISH THAT THE CLAIMANT COULD NOT HAVE LEFT A NUMBER WHERE HE COULD BE REACHED IF HE WAS NOT AT HOME, AS ADMINISTRATIVELY REPORTED, OR TO ESTABLISH THAT HE WAS OTHERWISE SO RESTRICTED IN THE PURSUANCE OF HIS OWN ACTIVITIES BY THE NATURE OF THIS DUTY THAT HIS HOME CONSTITUTED, IN EFFECT, A DUTY STATION. THE DECISION OF OUR OFFICE, B-155326, JANUARY 6, 1965, WHICH YOU CITE IN SUPPORT OF MR. WELLS' CLAIM AS BEING A SIMILAR SITUATION, DIFFERS FROM THE PRESENT CASE SINCE AIR FORCE REGULATIONS PROVIDED FOR ADDITIONAL ANNUAL COMPENSATION FOR STANDBY DUTY IN CONNECTION WITH THE POSITION HELD BY THE EMPLOYEE AND THE DEPARTMENT OF THE AIR FORCE REPORTED THAT THE EMPLOYEE'S ASSIGNMENT TO THE DUTY WAS IN ACCORDANCE WITH THE REGULATIONS. NO SUCH DESIGNATION OR DETERMINATION HAS BEEN MADE IN MR. WELLS' CASE. CONSEQUENTLY, THAT DECISION LENDS NO SUPPORT TO MR. WELLS' CLAIM. SEE B- 74607, DECEMBER 18, 1962, COPY ENCLOSED; ALSO SEE RAPP AND HAWKINS V. UNITED STATES, 167 CT.CL. 852 (1964), 340 F.2D 635, WHEREIN THE COURT DENIED REGULAR OVERTIME COMPENSATION UNDER CIRCUMSTANCES SIMILAR TO THOSE HERE INVOLVED.

THEREFORE, UPON THE PRESENT RECORD, THE SETTLEMENT OF MAY 24, 1962, IS SUSTAINED.