B-159761, OCT. 11, 1966

B-159761: Oct 11, 1966

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WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION ALLEGED TO BE DUE FOR REPORTING TO WORK EACH DAY 15 MINUTES PRIOR TO THE TIME YOUR TOUR OF DUTY WAS OFFICIALLY SCHEDULED TO BEGIN. YOU WERE EMPLOYED AS A NURSING ASSISTANT AT THE VETERANS ADMINISTRATION HOSPITAL. YOU ALLEGE THAT IT WAS NECESSARY FOR YOU TO REPORT TO WORK EACH MORNING AT 6:30 A.M. YOU WERE NOT ALLOWED TO WEAR BETWEEN HOME AND WORK. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON THE GROUND THAT THE OVERTIME WORK ALLEGEDLY PERFORMED BY YOU WAS NEITHER OFFICIALLY AUTHORIZED NOR APPROVED AS REQUIRED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THE CONDITIONS UNDER WHICH EMPLOYEES OF THE GOVERNMENT ARE ENTITLED TO THE PAYMENT OF OVERTIME COMPENSATION UNDER THE STATUTE QUOTED ABOVE HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS RENDERED BOTH BY OUR OFFICE AND THE UNITED STATES COURT OF CLAIMS.

B-159761, OCT. 11, 1966

TO MR. JAMES E. MCKINLEY:

THIS REFERS TO YOUR LETTER OF JUNE 21, 1966, REQUESTING REVIEW OF OUR SETTLEMENT DATED JUNE 14, 1966, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION ALLEGED TO BE DUE FOR REPORTING TO WORK EACH DAY 15 MINUTES PRIOR TO THE TIME YOUR TOUR OF DUTY WAS OFFICIALLY SCHEDULED TO BEGIN.

DURING THE PERIOD OF YOUR CLAIM, NOVEMBER 18, 1963, THROUGH MARCH 5, 1966, YOU WERE EMPLOYED AS A NURSING ASSISTANT AT THE VETERANS ADMINISTRATION HOSPITAL, AMERICAN LAKE, WASHINGTON. EXCEPT FOR THE PERIOD FROM SEPTEMBER 7 TO NOVEMBER 1, 1964, YOUR REGULARLY SCHEDULED TOUR OF DUTY COMMENCED AT 6:45 A.M. AND TERMINATED AT 3:15 P.M. WITH ONE-HALF HOUR FOR LUNCH. HOWEVER, YOU ALLEGE THAT IT WAS NECESSARY FOR YOU TO REPORT TO WORK EACH MORNING AT 6:30 A.M. IN ORDER TO CHANGE INTO YOUR UNIFORM WHICH, YOU SAY, YOU WERE NOT ALLOWED TO WEAR BETWEEN HOME AND WORK.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION ON THE GROUND THAT THE OVERTIME WORK ALLEGEDLY PERFORMED BY YOU WAS NEITHER OFFICIALLY AUTHORIZED NOR APPROVED AS REQUIRED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911 (NOW 5 U.S.C. 5542).

THE CONDITIONS UNDER WHICH EMPLOYEES OF THE GOVERNMENT ARE ENTITLED TO THE PAYMENT OF OVERTIME COMPENSATION UNDER THE STATUTE QUOTED ABOVE HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS RENDERED BOTH BY OUR OFFICE AND THE UNITED STATES COURT OF CLAIMS. IN THE RECENT CASE OF BILELLO ET AL. V. UNITED STATES, CT.CL. NO. 197-63, DECIDED BY THE COURT OF CLAIMS ON MARCH 18, 1966, THE COURT ANALYZED MANY OF THE PERTINENT OVERTIME DECISIONS PREVIOUSLY RENDERED BY THAT BODY AND ARRIVED AT THE FOLLOWING CONCLUSION:

"THE COMMON DENOMINATOR DERIVED FROM THESE RESULTS IS THAT A REGULATION REQUIRING APPROVAL OF OVERTIME BY A DESIGNATED OFFICIAL BEFORE IT CAN BE PAID IS BINDING ON CLAIMANTS UNLESS THE REGULATION IS UNREASONABLE OR THE OFFICIAL WHO HAS WITHHELD FORMAL WRITTEN APPROVAL HAS NEVERTHELESS ACTIVELY INDUCED AND ENCOURAGED THE OVERTIME. MERE KNOWLEDGE ON HIS PART, WITHOUT AFFIRMATIVE INDUCEMENT OR WRITTEN SANCTION, WOULD NOT SEEM TO BE SUFFICIENT. * * *"

YOUR ADMINISTRATIVE OFFICE HAS REPORTED THAT EMPLOYEES OF THE HOSPITAL NEVER WERE OFFICIALLY DIRECTED, EITHER ORALLY OR IN WRITING, TO REPORT TO WORK PRIOR TO THE TIMES THEIR HOURS OF DUTY WERE SCHEDULED TO COMMENCE. THE REPORT FURTHER STATES THAT WHILE THERE EXISTED NO DIRECTIVE WHICH PROHIBITED EMPLOYEES FROM WEARING THEIR UNIFORMS BETWEEN HOME AND WORK, THERE DID EXIST A COMMON UNDERSTANDING THAT UNIFORMS WOULD NOT BE REMOVED FROM THE PREMISES.

WE APPRECIATE THE FACT THAT UNDER THE CIRCUMSTANCES, YOU MAY HAVE FELT COMPELLED TO REPORT TO WORK EARLY EACH DAY FOR THE PURPOSE OF CHANGING INTO YOUR UNIFORM. HOWEVER, UPON APPLYING THE CRITERIA SET FORTH BY THE COURT IN THE BILELLO CASE, WE MUST CONCLUDE THAT THE MERE EXISTENCE OF A PRACTICE TO REPORT TO WORK EARLY BASED ON A COMMON UNDERSTANDING REGARDING THE WEARING OF UNIFORMS BETWEEN HOME AND WORK, IS NOT TANTAMOUNT TO EXPRESS OR IMPLIED DIRECTION BY AN OFFICER TO WORK OVERTIME. SEE ALSO ALBRIGHT ET AL. V. UNITED STATES, 161 CT.CL. 356.

THEREFORE, ON THE BASIS OF THE PRESENT RECORD, WE MUST SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.