B-160475, JAN. 27, 1967

B-160475, JAN. 27, 1967

TO MR. JULIUS E. BERNSTEIN:

THIS REFERS TO YOUR LETTER OF NOVEMBER 21, 1966, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT DATED NOVEMBER 15, 1966, WHICH DISALLOWED YOUR CLAIM FOR STANDBY DUTY AT YOUR HOME AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, WESTERN CONTRACT MANAGEMENT REGION, LOS ANGELES CONTRACT MANAGEMENT DISTRICT, LOS ANGELES, CALIFORNIA.

THE RECORD SHOWS THAT YOU ARE MAKING CLAIM FOR 109 HOURS OF OVERTIME REPRESENTING SIX OCCASIONS BETWEEN MARCH 1963 AND MAY 1965ON WHICH YOU, AS STAFF DUTY OFFICER FOR THE WESTERN CONTRACT MANAGEMENT REGION, EDWARDS AIR FORCE BASE, CALIFORNIA, STOOD AN OVERNIGHT TELEPHONE WATCH AT HOME EXTENDING DURING THE WEEK DAYS FROM 4:30 P.M. TO 7:45 A.M. THE FOLLOWING DAY, OR A 24-HOUR TELEPHONE WATCH ON WEEKEND DAYS FROM 7:45 A.M. ON ONE DAY TO 7:45 A.M. THE FOLLOWING DAY. YOU SAY THAT EACH DUTY OFFICER RECEIVED TWO OR THREE CALLS EACH NIGHT USUALLY BETWEEN 2 A.M. AND 4 A.M. AND MORE WHEN HIS TOUR OF DUTY WAS ON A WEEKEND (24 HOURS).

THE ESSENTIAL FACTS GIVING RISE TO YOUR CLAIM ARE SET FORTH IN THE CLAIMS DIVISION SETTLEMENT OF NOVEMBER 15, 1966. WHILE THERE MAY BE CERTAIN MINOR MISSTATEMENTS CONTAINED IN THE SETTLEMENT OF NOVEMBER 15, 1966, AS POINTED OUT BY YOU, WE BELIEVE IT SUFFICIENTLY SETS FORTH THE BASIS OF YOUR CLAIM AND THE REASONS FOR DISALLOWANCE THEREOF.

THERE WERE TWO PROVISIONS OF LAW IN EFFECT DURING THE PERIOD OF YOUR CLAIM UNDER WHICH OVERTIME COMPENSATION COULD HAVE BEEN AUTHORIZED TO EMPLOYEES SUCH AS YOU IF THE CONDITIONS OF THE LAW AND REGULATIONS WERE MET. THE FIRST PROVISIONS FOUND IN 5 U.S.C. 5545 (FORMERLY 5 U.S.C. 926) AS FOLLOWS:

"/A) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, MAY PROVIDE THAT---

"/1) AN 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 PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS OF THIS SUBCHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF HIS REGULARLY SCHEDULED WEEKLY TOUR. PREMIUM PAY UNDER THIS PARAGRAPH IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT IN EXCESS OF 25 PERCENT, OF SUCH PART OF THE RATE OF BASIC PAY FOR THE POSITION AS DOES NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-9, BY TAKING INTO CONSIDERATION THE NUMBER OF HOURS OF ACTUAL WORK REQUIRED IN THE POSITION, THE NUMBER OF HOURS REQUIRED IN A STANDBY STATUS AT OR WITHIN THE CONFINES OF THE STATION, THE EXTENT TO WHICH THE DUTIES OF THE POSITION ARE MADE MORE ONEROUS BY NIGHT OR HOLIDAY WORK, OR BY BEING EXTENDED OVER PERIODS OF MORE THAN 40 HOURS A WEEK, AND OTHER RELEVANT FACTORS * * *"

WHILE THE ABOVE PROVISION DOES NOT MENTION STANDBY DUTY AT AN EMPLOYEE'S HOME, THE CIVIL SERVICE COMMISSION HAS ISSUED REGULATIONS TO THE EFFECT THAT UNDER CERTAIN CIRCUMSTANCES AN EMPLOYEE'S HOME MAY BE DESIGNATED AS HIS OFFICIAL STATION BY THE DEPARTMENT CONCERNED.

THE RECORD SHOWS THAT YOUR HOME WAS NEVER DESIGNATED AS YOUR DUTY STATION. MOREOVER, THE DEPARTMENT OF THE AIR FORCE NEVER AUTHORIZED NOR DID THE CIVIL SERVICE COMMISSION APPROVE THE PAYMENT OF ADDITIONAL COMPENSATION AS REQUIRED BY SUCH PROVISION OF LAW. THEREFORE, YOU ARE NOT ENTITLED TO ANY ADDITIONAL COMPENSATION UNDER THAT PROVISION.

THE SECOND PROVISION OF LAW FOR CONSIDERATION IS 5 U.S.C. 5542 (FORMERLY 5 U.S.C. 911), IN PERTINENT PART AS FOLLOWS:

"HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES * * *"

IN ORDER FOR YOU TO QUALIFY FOR OVERTIME COMPENSATION UNDER THIS SECOND PROVISION IT IS NECESSARY THAT YOU ESTABLISH THAT THE STANDBY TIME AT HOME CONSTITUTED "HOURS OF WORK" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE LAW.

IN ARMOUR AND CO. V. WANTOCK, 323 U.S. 126, 133, THE SUPREME COURT, IN ORDER TO DETERMINE WHAT CONSTITUTED "WORK," USED THE CRITERION OF WHETHER THE TIME IN QUESTION WAS SPENT "* * * PREDOMINANTLY FOR THE EMPLOYER'S BENEFIT OR FOR THE EMPLOYEE'S * * *" AND STATED THAT THIS WAS "* * * DEPENDENT UPON ALL THE CIRCUMSTANCES OF THE CASE.'

ORDINARILY AN EMPLOYEE WHO IS IN A STANDBY STATUS AT HOME TO ANSWER THE TELEPHONE IS FREE TO READ, EAT, SLEEP, ENTERTAIN FRIENDS AND OTHERWISE FOLLOW HIS NORMAL PURSUITS WHILE STANDING THE TELEPHONE WATCH.

IN THE CASE OF RAPP AND HAWKINS V. UNITED STATES, 167 CT.CL. 852 (1964), INVOLVING CLAIMS FOR OVERTIME COMPENSATION UNDER CIRCUMSTANCES SUBSTANTIALLY SIMILAR TO THOSE HERE INVOLVED, IT WAS HELD THAT ALTHOUGH THE CLAIMANTS WERE REQUIRED TO BE WITHIN HEARING DISTANCE AT ALL TIMES TO ANSWER THE TELEPHONE AND TO TAKE APPROPRIATE ACTION IN THE SITUATIONS PRESENTED TO THEM BY TELEPHONE, THEY WERE NOT TO BE REGARDED AS PERFORMING WORK WITHIN THE MEANING OF THE OVERTIME STATUTE AND THUS NOT ENTITLED TO COMPENSATION FOR SUCH SERVICES. THE COURT IN THAT CASE NOTED THAT "THEORETICALLY THE DUTY OFFICER COULD BE DISTURBED AT ANY HOUR DURING THE NIGHT, BUT THERE IS NO EVIDENCE OF PLAINTIFFS EVER HAVING BEEN DISTURBED AFTER 9:00 P.M.' TO THE SAME EFFECT IS MOSS V. UNITED STATES, CT.CL. NO. 239-63, DECIDED DECEMBER 17, 1965, 353 F.2D 746.

WE NOTE THAT IN YOUR LETTER OF NOVEMBER 21, 1966, YOU SAY THAT EACH DUTY OFFICER RECEIVED TWO OR THREE CALLS EACH NIGHT, USUALLY BETWEEN2 A.M. AND 4 A.M., AND MORE WHEN THE TOUR OF DUTY WAS ON A WEEKEND FOR 24 HOURS. WHILE THE NUMBER OF TELEPHONE CALLS AND THE TIME THEY WERE RECEIVED IN YOUR CASE MAY NOT ACCORD IN ALL RESPECTS WITH THE NUMBER OF CALLS AND TIME OF RECEIPT THEREOF WHICH WERE INVOLVED IN THE RAPP CASE, SUPRA, NEVERTHELESS, WE DO NOT BELIEVE THE CALLS RECEIVED BY YOU ARE SUFFICIENT TO CLEARLY ESTABLISH THAT THE STANDBY TIME WAS SPENT PREDOMINANTLY FOR YOUR EMPLOYER'S BENEFIT. IN A CLAIM OF DOUBTFUL VALIDITY, SUCH AS HERE, IT IS OUR PRACTICE TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS UNDER THE PRINCIPLES OF LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316.

YOU REFER TO THE CASE OF MR. BITONTI WHO YOU SAY HAS RECEIVED PAYMENT FOR STANDBY TIME AT HOME AND THERE WAS NO DIFFERENCE IN THE DUTIES PERFORMED BY MR. BITONTI AND YOURSELF EXCEPT FOR THE DATES. MR. BITONTI WAS INADVERTENTLY PAID BY THE ADMINISTRATIVE OFFICE FOR THE STANDBY TIME AND HE RECENTLY HAS BEEN HELD LIABLE FOR REFUND OF THE AMOUNT INVOLVED.