B-160387, MAY 23, 1967

B-160387: May 23, 1967

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TO NATIONAL FEDERATION OF FEDERAL EMPLOYEES: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17. HE STATES THAT THE 30-MINUTE LUNCH PERIOD WAS IN EFFECT BUT THAT ONLY A PART OF THE PERIOD IS TO BE CONSIDERED AS FREE TIME BECAUSE TRAVEL TIME "IF HE RETURNED TO HIS STARTING STATION OR CHANGED STATIONS" REDUCED THE "EATING TIME" TO APPROXIMATELY 10 MINUTES. IT IS EVIDENT THAT THE EXTENT OF "TRAVEL TIME" INVOLVED WAS A MATTER THAT WAS WITHIN THE CONTROL OF THE INDIVIDUAL GUARD. THE GOVERNMENT'S REQUEST FOR OFFSET OF EATING TIME AGAINST ORDERED EARLY REPORTING TIME WAS REJECTED SINCE NOT ONLY WERE THE GUARDS NOT GIVEN ANY DEFINITE TIME FOR MEALS BUT FURTHER. THE RECORD FAILED TO ESTABLISH HOW MUCH TIME WAS TAKEN OFF FOR MEALS.

B-160387, MAY 23, 1967

TO NATIONAL FEDERATION OF FEDERAL EMPLOYEES:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1967, YOUR FILE H 178, REQUESTING RECONSIDERATION OF OUR DECISION DISALLOWING THE CLAIM OF REGIS P. THOMAS, CLAIM NO. Z-2335115, FOR OVERTIME COMPENSATION AS A SECURITY GUARD, U.S. ARMY EDGEWOOD ARSENAL, DURING THE PERIOD FEBRUARY 1964 TO MARCH 10, 1966.

YOUR CORRESPONDENCE REFERS TO A STATEMENT MADE BY A MEMBER OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES CONCERNING THE MATTER OF OVERTIME COMPENSATION FOR SECURITY GUARDS AT EDGEWOOD ARSENAL. HE STATES THAT THE 30-MINUTE LUNCH PERIOD WAS IN EFFECT BUT THAT ONLY A PART OF THE PERIOD IS TO BE CONSIDERED AS FREE TIME BECAUSE TRAVEL TIME "IF HE RETURNED TO HIS STARTING STATION OR CHANGED STATIONS" REDUCED THE "EATING TIME" TO APPROXIMATELY 10 MINUTES.

WE RECEIVED A REPORT FROM THE EDGEWOOD ARSENAL, DATED MAY 11, 1967, STATING THAT A FULL REVIEW OF THIS MATTER SHOWS THAT FOR THE PERIOD IN QUESTION (FEBRUARY 10, 1964, TO MARCH 10, 1966) ALL GUARDS ASSIGNED TO THE IDENTIFIED POSTS DURING THE SECOND SHIFT RECEIVED A FULL 30-MINUTE LUNCH PERIOD FREE OF ANY AND ALL DUTIES. THE REPORT SPECIFICALLY SAYS THAT THE GUARD COULD PERSONALLY CHOOSE WHERE HE WISHED TO EAT HIS LUNCH, WHETHER AT OR NEAR HIS ASSIGNED POST, OR TO GO TO A CAFETERIA ON POST, OR ANY OTHER BUILDING. THUS, IT IS EVIDENT THAT THE EXTENT OF "TRAVEL TIME" INVOLVED WAS A MATTER THAT WAS WITHIN THE CONTROL OF THE INDIVIDUAL GUARD. MOREOVER, WE FIND NO PROPER BASIS REQUIRING ANY TRAVEL TIME USED AS BEING DUTY TIME, IT BEING A COMMON OR ACCEPTED PRACTICE TO INCLUDE SUCH TIME AS A PART OF THE LUNCH PERIOD.

IN THE COURT OF CLAIMS CASE (ALBRIGHT V. UNITED STATES), REFERRED TO IN YOUR LETTER, THE GOVERNMENT'S REQUEST FOR OFFSET OF EATING TIME AGAINST ORDERED EARLY REPORTING TIME WAS REJECTED SINCE NOT ONLY WERE THE GUARDS NOT GIVEN ANY DEFINITE TIME FOR MEALS BUT FURTHER, MOST OF THE GUARDS ATE WHILE ON DUTY AND COULD NOT LEAVE THEIR POSTS WITHOUT SPECIAL PERMISSION. MOREOVER, THE RECORD FAILED TO ESTABLISH HOW MUCH TIME WAS TAKEN OFF FOR MEALS. IN MR. THOMAS' CASE HE WAS ASSIGNED A DEFINITE 30-MINUTE LUNCH PERIOD AND THE AGENCY POSITION IS THAT "ALL GUARDS ASSIGNED TO THE IDENTIFIED POSTS DURING THE SECOND SHIFT RECEIVED A FULL THIRTY MINUTE LUNCH PERIOD FREE OF ANY AND ALL DUTIES.' IT, THEREFORE, APPEARS THAT THE HOLDING IN THE ALBRIGHT CASE HAS NO APPLICABILITY TO MR. THOMAS' CIRCUMSTANCES.

CONSEQUENTLY, WE MUST SUSTAIN OUR SETTLEMENT OF OCTOBER 25, 1966, WHICH DISALLOWED MR. THOMAS' CLAIM FOR OVERTIME.