B-162705, NOVEMBER 27, 1967, 47 COMP. GEN. 311

B-162705: Nov 27, 1967

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COMPENSATION - OVERTIME - EARLY REPORTING AND DELAYED DEPARTURE - DUTY FREE LUNCH PERIOD GUARDS SCHEDULED FOR DAILY DUTY TOURS OF 8 HOURS AND 15 MINUTES WHO HAVE A 30-MINUTE DUTY-FREE LUNCH PERIOD. ARE IN AN ACTUAL WORK STATUS ONLY 7 HOURS AND 45 MINUTES ON EACH DAILY TOUR OF DUTY AND. THE GUARDS ARE NOT ENTITLED TO OVERTIME COMPENSATION ON THE BASIS OF ALBRIGHT V UNITED STATES. IN WHICH DECISION THE COURT FOUND THE GUARDS DID NOT HAVE RELIEVED DUTY-FREE LUNCH PERIODS. REQUESTS OUR DECISION WHETHER MEMBERS OF THE SMITHSONIAN GUARD FORCE ARE ENTITLED TO OVERTIME COMPENSATION FOR 15 MINUTES INCLUDED IN THEIR DAILY SCHEDULED TOURS OF 8 HOURS AND 15 MINUTES. THE SMITHSONIAN GUARD FORCE WAS PLACED ON THREE RELIEFS OF 8 HOURS AND 15 MINUTES DURATION WITH A HALF-HOUR LUNCH PERIOD INCLUDED DURING WHICH THE GUARDS ARE RELIEVED FROM DUTY.

B-162705, NOVEMBER 27, 1967, 47 COMP. GEN. 311

COMPENSATION - OVERTIME - EARLY REPORTING AND DELAYED DEPARTURE - DUTY FREE LUNCH PERIOD GUARDS SCHEDULED FOR DAILY DUTY TOURS OF 8 HOURS AND 15 MINUTES WHO HAVE A 30-MINUTE DUTY-FREE LUNCH PERIOD, ALTHOUGH REQUIRED TO REMAIN ON CALL IN THE GOVERNMENT BUILDING IN WHICH EMPLOYED TO BE AVAILABLE IN THE EVENT OF EMERGENCIES, ARE IN AN ACTUAL WORK STATUS ONLY 7 HOURS AND 45 MINUTES ON EACH DAILY TOUR OF DUTY AND, THEREFORE, THE GUARDS ARE NOT ENTITLED TO OVERTIME COMPENSATION ON THE BASIS OF ALBRIGHT V UNITED STATES, 161 CT. CL. 356, IN WHICH DECISION THE COURT FOUND THE GUARDS DID NOT HAVE RELIEVED DUTY-FREE LUNCH PERIODS.

TO THE SECRETARY, SMITHSONIAN INSTITUTION, NOVEMBER 27, 1967:

YOUR LETTER OF OCTOBER 12, 1967, WITH ENCLOSURES, REQUESTS OUR DECISION WHETHER MEMBERS OF THE SMITHSONIAN GUARD FORCE ARE ENTITLED TO OVERTIME COMPENSATION FOR 15 MINUTES INCLUDED IN THEIR DAILY SCHEDULED TOURS OF 8 HOURS AND 15 MINUTES.

YOUR LETTER RELATES THAT BEGINNING FEBRUARY 8, 1965, THE SMITHSONIAN GUARD FORCE WAS PLACED ON THREE RELIEFS OF 8 HOURS AND 15 MINUTES DURATION WITH A HALF-HOUR LUNCH PERIOD INCLUDED DURING WHICH THE GUARDS ARE RELIEVED FROM DUTY. WE UNDERSTAND THAT THE GUARDS DO NOT REMAIN AT THEIR DUTY POSTS DURING THEIR LUNCH PERIOD BUT GENERALLY DO REMAIN WITHIN THE BUILDING UNLESS EXCUSED BY THE GUARD OFFICER IN CHARGE. ALSO, IT APPEARS FROM THE RECORD THAT THE 30-MINUTE LUNCHEON BREAKS MAY BE INTERRUPTED ONLY IN EMERGENCIES AND THAT WHEN SO INTERRUPTED SUCH BREAKS WILL BE RESCHEDULED. FURTHER, WE UNDERSTAND THAT SINCE FEBRUARY 5, 1965, THERE IS NO KNOWN INSTANCE WHEN ANY GUARD HAS BEEN RECALLED DURING THE LUNCH PERIOD TO PERFORM EMERGENCY DUTIES.

THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES CONTENDS, ON BEHALF OF THE GUARDS, THAT THEY ARE ENTITLED TO OVERTIME COMPENSATION FOR THE EXTENDED TOURS ON THE BASIS OF ALBRIGHT V. UNITED STATES, 161 CT. CL. 356 (1963) AND OUR DECISION OF OCTOBER 8, 1964, B-155197, 44 COMP. GEN. 195, RELATING TO GUARDS IN THE BUREAU OF ENGRAVING AND PRINTING.

OUR DECISION IN 44 COMP. GEN. 195 IS ANALOGOUS TO THE ALBRIGHT CASE ONLY TO THE EXTENT THAT IN BOTH CASES IT WAS ESTABLISHED THAT THE EARLY REPORTING OF 15 MINUTES BEFORE EACH TOUR OF DUTY WAS OFFICIALLY ORDERED OR DIRECTED.

IN THE ALBRIGHT CASE THE COURT FOUND AS A MATTER OF FACT--ABSENT PROOF BY THE GOVERNMENT TO THE CONTRARY--THAT THE GUARDS DID NOT HAVE RELIEVED DUTY -FREE LUNCH PERIODS. IN 44 COMP. GEN. 195, HOWEVER, WE AGREED WITH THE DETERMINATION OF THE BUREAU OF ENGRAVING AND PRINTING THAT IN VIEW OF THE UNIQUE CONDITIONS TO WHICH EMPLOYEES OF THE BUREAU WERE SUBJECTED, THE LUNCH PERIODS OF ALL OF ITS EMPLOYEES (INCLUDING GUARDS), WHICH FOR MANY YEARS (BEGINNING IN 1862) HAD BEEN REGARDED ADMINISTRATIVELY AS DUTY TIME, PROPERLY COULD CONTINUE TO BE CONSIDERED AS WORK TIME. THAT DECISION WAS NOT INTENDED TO BE AUTHORITY FOR TREATING LUNCH PERIODS AS DUTY OR WORK TIME FOR OTHER GUARDS IN THE GOVERNMENT SOLELY BECAUSE OF THE FACT THAT THE GUARDS-- OR OTHER EMPLOYEES--ARE REQUIRED TO REMAIN IN THE BUILDING ON CALL IN THE EVENT OF EMERGENCIES. SEE B-153307, MARCH 11, 1964; BANTOM V. UNITED STATES, 165 CT. CL. 312 (1964).

SINCE FEBRUARY 8, 1965, THE GUARDS AT THE SMITHSONIAN INSTITUTION APPEAR TO HAVE HAD RELIEVED DUTY-FREE LUNCHEON PERIODS OF 30 MINUTES IN EACH DAILY TOUR OF 8 HOURS AND 15 MINUTES. THUS, THEY ARE IN AN ACTUAL WORK STATUS ONLY FOR 7 HOURS AND 45 MINUTES EACH DAILY TOUR. THE FACT THAT THE SMITHSONIAN GUARDS ARE REQUIRED TO REMAIN ON THE PREMISES DURING THEIR LUNCH PERIODS, IN ITSELF, IS NOT MATERIAL TO THE ISSUE. IN SKIDMORE V. SWIFT, 323 U.S. 134 AT PAGE 139, THE COURT SAID: ,* * * ALTHOUGH THE EMPLOYEES WERE REQUIRED TO REMAIN ON THE PREMISES DURING THE ENTIRE TIME, THE EVIDENCE SHOWS THAT THEY WERE VERY RARELY INTERRUPTED IN THEIR NORMAL SLEEPING AND EATING TIME, AND THESE ARE PURSUITS OF A PURELY PRIVATE NATURE WHICH PRESUMABLY OCCUPY THE EMPLOYEES' TIME WHETHER THEY WERE ON DUTY OR NOT AND WHICH APPARENTLY COULD BE PURSUED ADEQUATELY AND COMFORTABLY IN THE REQUIRED CIRCUMSTANCES * * *.' (I.E., IN THE FACILITIES FURNISHED BY THE EMPLOYER.) ALSO, SEE RAPP V. UNITED STATES, 167 CT. CL. 852 (1964); BANTOM V. UNITED STATES, 165 CT. CL. 312 (1964); WRIGHT V. UNITED STATES, 144 CT. CL. 810 (1961); ARMSTRONG V. UNITED STATES, 144 CT. CL. 659.

ON THE FACTS PRESENTED BY YOUR LETTER WE MUST CONCUR IN THE OPINION EXPRESSED BY YOUR GENERAL COUNSEL AND, THEREFORE, WE CONCLUDE THAT THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT TO PAY OVERTIME COMPENSATION TO THE SMITHSONIAN GUARDS FOR THE EXTENDED TOUR OF 15 MINUTES.