B-163387, MAR. 13, 1968

B-163387, MAR. 13, 1968

COMPENSATION - OVERTIME - GUARD DUTY DECISION TO ADMINISTRATOR OF NATIONAL GALLERY OF ART CONCERNING DETERMINATION OF ENTITLEMENT OF GUARDS TO OVERTIME. GUARDS WHO CLAIM OVERTIME OF 15 MINUTES TO RETURN UNIFORMS AND EQUIPMENT AT END OF DUTY ON BASIS OF REGULATION THAT REQUIRES THEM TO REPORT 15 MINUTES EARLY TO CHANGE INTO UNIFORM MAY NOT HAVE CLAIM ALLOWED. EVEN IF PROCEDURE COULD BE REGARDED AS CONNECTED WITH EARLY UNIFORM CHANGING REQUIREMENT THERE WOULD BE SUFFICIENT AMOUNT FOR FREE LUNCH PERIOD TO COUNTERACT SUCH TIME. SINCE THE GUARDS HAVE ONLY RARELY BEEN REQUIRED TO INTERRUPT THEIR FREE LUNCH PERIODS FOR DUTY NO BASIS EXISTS FOR PAYMENT OF OVERTIME COMPENSATION OF 30 MINUTES.

TO MR. ADAMS:

THIS IS IN REPLY TO YOUR LETTER DATED JANUARY 18, 1968, IN WHICH YOU REQUEST OUR DETERMINATION OF ENTITLEMENT TO OVERTIME COMPENSATION ON THE PART OF TWO MEMBERS OF THE GUARD FORCE OF THE NATIONAL GALLERY OF ART, HUGH J. BUSHELL, GS-3, STEP 10 AND GEORGE A. MACKIE, GS-3, STEP 5, AS REPRESENTATIVE OF 88 CLAIMS YOU HAVE RECEIVED FROM PRESENT OR FORMER GUARDS. YOU INDICATE THAT YOU FORWARDED 35 CLAIMS FOR OVERTIME COMPENSATION TO OUR OFFICE FOR RECORDING ON DECEMBER 1, 1967.

THE GUARDS ARE CLAIMING OVERTIME COMPENSATION OF 30 MINUTES DAILY BASED ON A REGULATION WHICH PROVIDES THAT THEY SHALL REPORT 15 MINUTES BEFORE ENTERING ON DUTY IN ORDER TO CHANGE INTO UNIFORMS. THE CLAIM FOR AN ADDITIONAL 15 MINUTES IS BASED ON THE ALLEGED TIME REQUIRED TO RETURN THE UNIFORMS AND OTHER EQUIPMENT TO THE ASSIGNED STORAGE AREAS.

AVAILABLE INFORMATION INDICATES THAT YOU HAVE A GUARD FORCE OF APPROXIMATELY 125 EMPLOYEES WORKING A BASIC WORKWEEK OF 40 HOURS, CONSISTING OF 5 EIGHT-HOUR WORKDAYS. THE CLAIMANTS ARE REQUIRED TO CHANGE INTO UNIFORM PRIOR TO BEGINNING THEIR TOUR OF DUTY AND TO REMOVE THEM UPON COMPLETION THEREOF. THESE EMPLOYEES ARE ASSIGNED TO DUTY IN FOUR TOURS, TOUR "A" , 12 MIDNIGHT TO 8 A.M., 7 GUARDS; TOUR "B" , 8 A.M. TO 4 P.M., 7 GUARDS; TOUR "C" , 9:15 A.M. TO 5:15 P.M., MONDAY THROUGH SATURDAY AND 1:45 P.M. TO 10:15 P.M. ON SUNDAY (INCLUDES 1/2 HOUR OF REGULARLY SCHEDULED OVERTIME) 100 TO 115 GUARDS; AND TOUR "D" , 4 P.M. TO 12 MIDNIGHT, 7 GUARDS. TOURS "A" ,"B" AND "D" COMPRISE THE SECURITY FORCE THAT PROTECTS THE BUILDING AROUND THE CLOCK. YOU INDICATE THAT THERE ARE ONLY 5 GUARDS ASSIGNED DAILY ON THESE TOURS AND FOR THAT REASON THE CHECK- IN (IN UNIFORM) IN THE GUARD OFFICE, ASSIGNMENT AND RELIEF CAN BE ACCOMPLISHED IN 5 MINUTES OR LESS.

YOU POINT OUT THAT THE 70 OR SO EMPLOYEES ASSIGNED TO TOUR "C" DAILY ARE RESPONSIBLE FOR THE PROTECTION OF THE PREMISES AND THE EXHIBITIONS DURING THE TIME THE GALLERY IS OPEN TO THE PUBLIC. THEY ARE REQUIRED TO MUSTER OR CHECK-IN AT THE OFFICE IN UNIFORM AT THE BEGINNING OF THEIR TOUR OF DUTY. THE FIRST TEN MINUTES IS TAKEN UP WITH CHECK-IN AND ASSIGNMENTS AND THEN THE 60 OR SO GUARDS ASSIGNED TO THE EXHIBITION AREAS HAVE 15 OR 20 MINUTES FREE PRIOR TO REPORTING TO THEIR WORK AREAS AT 9:50 A.M. THE 10 GUARDS ON THIS TOUR ASSIGNED TO SUPERVISORY OR OTHER DUTIES PROCEED DIRECTLY TO THEIR WORK AFTER REPORTING IN. THE MEN ON TOUR "C" ARE DISMISSED FROM THEIR POSTS BY A BELL WHICH RINGS 5 MINUTES BEFORE THE END OF THE SHIFT. YOUR REPORT STATES THAT ABOUT 10 MEN ON THIS TOUR HAVE EQUIPMENT TO CHECK-IN AT THE GUARD OFFICE AND THE 60 OR SO OTHERS TURN IN THEIR WRITTEN REPORTS TO A SUPERVISOR ON THE WAY FROM THEIR POSTS TO THE SQUAD ROOM. IT APPEARS THAT THE GREAT MAJORITY OF GUARDS ON TOUR "C" CAN BEGIN CHANGING OUT OF UNIFORM PRIOR TO THE END OF THE SHIFT.

MR. BUSHELL PERFORMED HIS ENTIRE SERVICE ON TOUR "C". MR. MACKIE PERFORMED DUTY AT VARIOUS TIMES ON TOURS "A" ,"C" AND "D".

WITH RESPECT TO LUNCH PERIODS, EMPLOYEES ON TOURS "B" ,"C" AND "D" (DURING 5 MONTHS OF THE YEAR AND ON ALL SUNDAYS) HAD CAFETERIA SERVICE AVAILABLE AND ARE SCHEDULED FOR A 30-MINUTE LUNCH PERIOD WITHIN THEIR 8- HOUR TOUR OF DUTY. IN ADDITION GUARDS ON TOUR "D" , WHEN THE CAFETERIA IS NOT OPEN, ARE SCHEDULED FOR ONE REST PERIOD OF 15 MINUTES EACH AND ONE PERIOD OF OFFICE DUTY OF 30 TO 40 MINUTESEACH DURING THE 8 HOUR TOUR OF DUTY. THOSE ON TOUR "A" HAVE TWO REST PERIODS OF 15 MINUTES EACH AND TWO PERIODS OF OFFICE DUTY OF 30 TO 40 MINUTES EACH SCHEDULED DURING THE 8- HOUR TOUR. ADJACENT TO THE OFFICE IS A ROOM WITH A HOT PLATE AND OTHER EATING FACILITIES WHICH THE GUARDS ON TOURS "A" AND "D" NORMALLY WOULD BE ABLE TO USE DURING THESE PERIODS WITHOUT INTERRUPTION.

THE RECORD INDICATES THAT GUARDS ARE NOT PERMITTED TO LEAVE THE BUILDING DURING SCHEDULED REST AND LUNCH PERIODS WITHOUT SPECIAL PERMISSION. HOWEVER, DURING SUCH LUNCH PERIODS THEY HAVE THE SAME FREEDOM AS OTHER EMPLOYEES EXCEPT THAT THEY ARE EXPECTED TO RESPOND TO FIRE AND EMERGENCY ALARMS. WE HAVE BEEN INFORMALLY ADVISED THAT THERE HAS BEEN NO SUCH INTERRUPTION IN THE PAST YEAR AND ONLY ONE SUCH INCIDENT IN THE LAST SEVERAL YEARS.

THE GUARDS CONTEND THAT SINCE THE REGULATION REQUIRES THEM TO REPORT 15 MINUTES EARLY TO CHANGE INTO THE PRESCRIBED UNIFORMS THEN THEY SHOULD BE ALLOWED AN EQUAL AMOUNT OF TIME FOR RETURNING THE UNIFORMS AND OTHER EQUIPMENT TO DESIGNATED STORAGE, ALL OF WHICH SHOULD BE CREDITABLE AS OVERTIME.

THE REGULATIONS GOVERNING THE GUARD FORCE OF THE NATIONAL GALLERY OF ART PUBLISHED IN 1941 AND REVISED IN 1948 BY THE BOARD OF TRUSTEES OF THE GALLERY ARE STATED AS BEING INTENDED AS A GUIDE IN THE PERFORMANCE OF OFFICIAL DUTIES. SECTION 12 (B) (1) OF THE REGULATIONS REQUIRES THE WEARING OF THE UNIFORM WHILE ON DUTY AND SECTION 12 (G) REQUIRES THAT ARTICLES OF UNIFORM WITH THE EXCEPTION OF SHIRTS BE KEPT IN OFFICIAL LOCKERS AT ALL TIMES EXCEPT WHEN WORN ON DUTY OR REMOVED FOR CLEANING. WITH RESPECT TO HOURS OF DUTY SECTION 14 OF THE REGULATIONS PROVIDES AS FOLLOWS:

"EIGHT HOURS, INCLUSIVE OF LUNCHEON PERIODS AND SUCH REST PERIODS AS MAY BE ESTABLISHED BY THE OFFICER IN CHARGE, SHALL CONSTITUTE A DAY'S DUTY FOR GUARDS, EXCEPT IN CASES OF EMERGENCY.

"THE HOURS OF DUTY OF EACH RELIEF SHALL BE DETERMINED BY THE CAPTAIN, UNLESS OTHERWISE ORDERED BY THE ADMINISTRATOR.

"GUARDS SHALL REPORT TO THE GUARD SQUAD ROOM 15 MINUTES BEFORE THE TIME THEY ARE TO ENTER ON DUTY IN ORDER TO ALLOW TIME FOR CHANGING TO THE PRESCRIBED UNIFORMS.

"GUARDS SHALL BE ALLOWED A 30-MINUTE LUNCHEON PERIOD. THE VARIOUS LUNCHEON PERIODS SHALL BE ARRANGED BY THE OFFICER IN CHARGE. IN NO CASE SHALL A GUARD LEAVE THE BUILDING DURING HIS LUNCHEON PERIOD UNLESS GIVEN PERMISSION BY THE OFFICER IN CHARGE.'

YOUR REPORT INDICATES THAT ALTHOUGH THE REGULATION QUOTED ABOVE PROVIDES FOR GUARDS TO REPORT 15 MINUTES EARLY TO CHANGE INTO UNIFORM THIS PRACTICE WAS NEVER FOLLOWED ON TOURS "A" ,"B" , AND ,D" , THE GUARDS MERELY BEING REQUIRED TO RELIEVE IN UNIFORM AT THE START OF THEIR SHIFTS. THERE WERE NO MUSTERS, ROLL CALLS, OR OTHER CHECK-IN BY CLAIMANTS. IN VIEW OF THE SMALL NUMBER OF GUARDS (5) INVOLVED ON THESE TOURS YOU STATE THAT THE CHECK-IN, ASSIGNMENTS AND RELIEF COULD BE ACCOMPLISHED WITHIN 5 MINUTES OR LESS. LIKEWISE, THE TIME REQUIRED FOR CHANGING INTO UNIFORM ON WHICH THE SMALL NUMBER OF GUARDS AGAIN HAD A BEARING WOULD NOT EXCEED 5 MINUTES.

YOUR REPORT FURTHER INDICATES THAT THE GUARDS ASSIGNED TO TOUR "C" LIKEWISE HAVE NO EARLY MUSTER REQUIREMENTS, THEY MERELY REPORT IN UNIFORM AT THE GUARD OFFICE AT 9:15 A.M. (1:45 P.M. ON SUNDAYS) AT THE COMMENCEMENT OF THEIR TOUR OF DUTY AND NOT NECESSARILY 15 MINUTES PRIOR THERETO. AFTER RECEIVING THEIR ASSIGNMENTS THEY HAVE 15 OR 20 MINUTES FREE TIME BEFORE PROCEEDING TO THEIR POSTS AT 9:50 A.M. IN ADDITION, THEY ARE DISMISSED FROM THEIR POSTS 5 MINUTES PRIOR TO THE END OF THEIR TOUR OF DUTY TO PERMIT THE TURNING IN OF REPORTS AND EQUIPMENT AND REMOVAL OF THE UNIFORM. THUS, THE ONLY STEP NOT ACTUALLY COMPLETED WITHIN THE DUTY HOURS FOR TOUR "C" IS PUTTING ON THE UNIFORM IN THE MORNING.

THE 15-MINUTE EARLY REPORTING TIME PROVIDED IN SECTION 14 OF THE GUARDS' REGULATIONS HAVING BEEN ORDERED BY THE BOARD OF TRUSTEES, A BODY HAVING AUTHORITY TO DO SO, WOULD, IF COMPLIED WITH, BE REGARDED AS WORK TIME WHICH WOULD BE COMPENSABLE AS OVERTIME SERVICES IF NOT OTHERWISE COMPENSATED FOR BY A GRANT OF FREE TIME. ASSUMING THAT THE REGULATION HAD BEEN CARRIED OUT, THE EARLY REPORTING TIME IS MORE THAN OFFSET BY THE 30- MINUTE PAID LUNCH PERIOD DURING WHICH THE GUARDS ARE EITHER RELIEVED TO EAT OR HAVE FREE TIME TO DO SO. THE MAJORITY OF THE MEN ON THE FORCE (TOURS "C" ,"B" , AND "D" FOR 5 MONTHS OF THE YEAR) ACTUALLY HAVE THE OPPORTUNITY OF EATING AN UNINTERRUPTED MEAL IN THE CAFETERIA DURING THIS PERIOD. THOSE ON TOUR "A" AND TOUR "D" FOR THE OTHER 7 MONTHS HAVE PERIODS OF 30 TO 40 MINUTES NORMALLY UNINTERRUPTED TIME IN THE OFFICE AWAY FROM THEIR REGULAR PATROLLING DUTIES IN WHICH THEY WOULD BE FREE TO EAT. THE POTENTIALITY OF BEING CALLED BACK TO DUTY WHICH THE FACTS SHOW MATERIALIZED ONLY ONCE IN THE PAST SEVERAL YEARS CANNOT BE DEEMED TO TAKE THE CASE OUTSIDE THE SCOPE OF THE RULE ENUNCIATED IN BANTOM V UNITED STATES, 165 CT. CL. 312, REQUIRING THE PERFORMANCE OF SUBSTANTIAL DUTIES DURING SUCH LUNCH PERIODS AS A PREREQUISITE TO RECOVERY. SEE ALSO BOWLING V UNITED STATES, CT. CL. NO. 25-64, DECEMBER 15, 1967.

INSOFAR AS THE REQUIREMENT TO CHANGE INTO UNIFORM ON THE PREMISES IS CONCERNED WHERE THE REQUIREMENT EXISTS WITHOUT ANY VALID ORDER FOR EARLY REPORTING, WE HAVE EXPRESSED THE VIEW THAT IT IS DOUBTFUL THAT THE TIME SO CONSUMED CONSTITUTES WORK. SEE B-160956, AUGUST 15, 1967, COPY HEREWITH. AND AS WE SAID ON FURTHER EXAMINATION OF THIS QUESTION UPON APPEAL OF THAT DECISION:

"HOWEVER, EVEN ASSUMING CONTRARY TO THE FOREGOING THAT DRESS-UP TIME CONSTITUTED WORK AND THAT THE REQUIREMENT OF BEING OFFICIALLY ORDERED AND APPROVED WAS SATISFIED, WE WOULD STILL HAVE TO REGARD THE TIME INVOLVED IN CHANGING IN AND OUT OF UNIFORM (APPROXIMATELY FIVE MINUTES AT THE BEGINNING AND ENDING OF A SHIFT) AS DE MINIMIS. SEE PLUMMER V MINNEAPOLIS LINE POWER IMPLEMENT ., 76 F.SUPP. 745; MCINTYRE V SEAGRAM AND SONS, 72 F.SUPP. 366.' IBID. JANUARY 17, 1968, COPY HEREWITH.

REFERRING TO THE TIME FOR CHANGING OUT OF UNIFORMS AT THE END OF A SHIFT WE NOTE THAT EVEN IF SUCH PROCEDURE BE REGARDED AS CONNECTED WITH THE EARLY UNIFORM CHANGING REQUIREMENT THERE WOULD STILL BE A SUFFICIENT AMOUNT OF THE FREE LUNCH PERIOD TO ALSO COUNTERACT SUCH TIME.

ON THE BASIS OF THE FOREGOING WE DO NOT CONSIDER THAT ANY ENTITLEMENT TO OVERTIME COMPENSATION OF 30 MINUTES EXISTS ON THE PART OF MEMBERS OF THE NATIONAL GALLERY'S GUARD FORCE FOR CHANGING INTO AND OUT OF UNIFORMS AT THE BEGINNING AND THE TERMINATION OF THEIR SHIFTS. ACCORDINGLY, THERE IS NO BASIS FOR ADMINISTRATIVE SETTLEMENT OF SUCH CLAIMS.