B-162352, SEP. 14, 1967

B-162352: Sep 14, 1967

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EMPLOYEE WHO WAS ASSIGNED FIVE OR SIX TIMES A YEAR AS A DUTY OFFICER AT HIS HOME DURING CERTAIN OFF DUTY HOURS WHICH REQUIRED HIM TO BE AVAILABLE TO ANSWER OFFICIAL BUSINESS TELEPHONE CALLS MAY NOT HAVE SUCH TIME WHEN HE IS FREE TO ENGAGE IN NORMAL PURSUITS AT HOME WITHIN REACH OF A TELEPHONE CONSIDERED TO BE PREDOMINATELY ENGAGED IN OFFICIAL BUSINESS AND THEREFORE OVERTIME COMPENSATION IS NOT PAYABLE. WHICH WAS DISALLOWED BY SETTLEMENT OF THE CLAIMS DIVISION OF OUR OFFICE DATED MAY 26. THE INFORMATION YOU FURNISHED WITH YOUR CLAIM SHOWS THAT YOU WERE INTERMITTENTLY ASSIGNED (ABOUT 5 OR 6 TIMES A YEAR) AS DUTY OFFICER AT HOME DURING CERTAIN OF YOUR OFF-DUTY HOURS AND THAT WHILE YOU WERE SO ASSIGNED YOU WERE REQUIRED TO BE AVAILABLE TO RECEIVE TELEPHONE CALLS REGARDING OFFICIAL BUSINESS.

B-162352, SEP. 14, 1967

COMPENSATION - OVERTIME - STANDBY DUTY DECISION TO EMPLOYEE OF MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE, ARMY, FOR OVERTIME WHEN ASSIGNED AS DUTY OFFICER AT HOME. EMPLOYEE WHO WAS ASSIGNED FIVE OR SIX TIMES A YEAR AS A DUTY OFFICER AT HIS HOME DURING CERTAIN OFF DUTY HOURS WHICH REQUIRED HIM TO BE AVAILABLE TO ANSWER OFFICIAL BUSINESS TELEPHONE CALLS MAY NOT HAVE SUCH TIME WHEN HE IS FREE TO ENGAGE IN NORMAL PURSUITS AT HOME WITHIN REACH OF A TELEPHONE CONSIDERED TO BE PREDOMINATELY ENGAGED IN OFFICIAL BUSINESS AND THEREFORE OVERTIME COMPENSATION IS NOT PAYABLE.

TO MR. RAY J. KINNEY:

WE REFER TO YOUR LETTER OF AUGUST 17, 1967, BY WHICH YOU REQUEST OUR FURTHER CONSIDERATION OF YOUR CLAIM FOR ADDITIONAL OVERTIME COMPENSATION FOR DUTY OFFICER SERVICE YOU PERFORMED AS AN EMPLOYEE OF THE CENTRAL AREA, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE, DEPARTMENT OF THE ARMY DURING THE PERIOD JANUARY 7, 1963, THROUGH DECEMBER 21, 1966, WHICH WAS DISALLOWED BY SETTLEMENT OF THE CLAIMS DIVISION OF OUR OFFICE DATED MAY 26, 1967.

THE INFORMATION YOU FURNISHED WITH YOUR CLAIM SHOWS THAT YOU WERE INTERMITTENTLY ASSIGNED (ABOUT 5 OR 6 TIMES A YEAR) AS DUTY OFFICER AT HOME DURING CERTAIN OF YOUR OFF-DUTY HOURS AND THAT WHILE YOU WERE SO ASSIGNED YOU WERE REQUIRED TO BE AVAILABLE TO RECEIVE TELEPHONE CALLS REGARDING OFFICIAL BUSINESS. IT APPEARS THAT ON ONE OCCASION YOU WERE REQUIRED TO PERFORM SOME OVERTIME WORK WHILE YOU WERE ASSIGNED AS DUTY OFFICER AND THAT YOU WERE PAID TWO HOURS OVERTIME (CALL BACK) COMPENSATION FOR THAT DUTY.

IN THE CASE OF RAPP V. UNITED STATES, 167 CT. CL. NO. 852 (1964) THE COURT SAID AT PAGES 859 AND 865:

"THE PRINCIPAL RESPONSIBILITY OF THE DUTY OFFICER, WHEN SERVING HIS TOUR OF DUTY AT HOME, WAS TO BE WITHIN HEARING DISTANCE OF HIS HOME TELEPHONE.

"CONSIDERING THE EVIDENCE SUMMARIZED HEREINBEFORE, RELATING TO THE DUTY OFFICER TOURS SERVED BY PLAINTIFFS, IT CANNOT BE SAID THAT THEY SPENT THEIR TIME -PREDOMINANTLY FOR (THEIR) EMPLOYER'S BENEFIT- WHEN THEY PERFORMED SUCH TOURS AT HOME. THOSE TOURS WERE NOT -HOURS OF WORK- WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, * * * AND PLAINTIFFS ARE NOT ENTITLED TO COMPENSATION FOR ANY OF THE TIME THEY ACTED AS -DUTY OFFICER- AT THEIR HOMES.' THE COURT TOOK A SIMILAR VIEW OF THE PERFORMANCE OF DUTY OFFICER SERVICES IN THE CASE OF MOSS V. UNITED STATES, 173 CT. CL. NO. 1169 (1965).

UNDER THOSE DECISIONS WITH WHICH WE CONCUR AN EMPLOYEE WHO IS ASSIGNED AS DUTY OFFICER BUT WHOSE ONLY DUTY IS TO BE AVAILABLE BY TELEPHONE IN CASE OF NECESSITY IS NOT ENTITLED TO ADDITIONAL COMPENSATION. STANDBY DUTY WHICH INVOLVES THE PERFORMANCE OF SUBSTANTIAL WORK FOR THE GOVERNMENT MAY BE THE BASIS FOR PAYMENT OF ADDITIONAL COMPENSATION WHETHER PERFORMED AT AN EMPLOYEE'S HOME OR AT HIS DUTY STATION. HOWEVER, PAYMENT IN SUCH CASES MUST BE BASED ON THE FACT THAT THE TIME IN QUESTION WAS SPENT PREDOMINANTLY FOR THE BENEFIT OF THE GOVERNMENT. AS INDICATED IN THE CITED CASES AN EMPLOYEE WHO IS FREE TO ENGAGE IN HIS NORMAL PURSUITS AT HIS HOME WHILE WITHIN REACH OF HIS TELEPHONE IS NOT CONSIDERED TO BE PREDOMINANTLY ENGAGED IN THE BUSINESS OF THE GOVERNMENT.

FOR THE REASONS STATED, THE GENERAL ACCOUNTING OFFICE SETTLEMENT OF MAY 26, 1967, IS SUSTAINED.