B-163716, JUN. 5, 1968

B-163716: Jun 5, 1968

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ET AL.: THIS IS IN REPLY TO THE LETTER OF YOUR ATTORNEY. IN DENYING YOUR CLAIM INITIALLY WE POINTED OUT THAT THERE WAS NO SUBSTANTIATION OF YOUR HAVING REPORTED ONE-HALF HOUR EARLY AND THAT THERE WAS NO SHOWING THAT THE OVERTIME IN QUESTION HAD BEEN ORDERED OR APPROVED BY PROPER AUTHORITY. ZIEHM HAS ENCLOSED AN AFFIDAVIT SIGNED BY YOU AND THE OTHER CLAIMANTS DEPOSING THAT THEY WERE REQUIRED AND DID REPORT ONE HALF HOUR PRIOR TO THEIR SCHEDULED TOUR IN ORDER TO ACCOMPLISH CERTAIN ENUMERATED DUTIES INCIDENT TO THEIR POSITIONS. INCIDENTAL DUTIES DIRECTLY CONNECTED WITH THE PERFORMANCE OF A GIVEN JOB ARE CONSIDERED ASSIGNED DUTIES. TIME SPENT IN THEIR PERFORMANCE IS TO BE INCLUDED IN THE DAILY SCHEDULE OF WORKING HOURS.

B-163716, JUN. 5, 1968

TO MR. RAYMOND C. ABARE, ET AL.:

THIS IS IN REPLY TO THE LETTER OF YOUR ATTORNEY, MR. FREDERICK G. ZIEHM OF JANUARY 19, 1968, APPEALING ON YOUR BEHALF AND THAT OF 21 OTHER GUARDS AT THE DEPARTMENT OF THE ARM'S ARSENAL AT WATERVLIET, NEW YORK, FROM OUR OFFICE SETTLEMENT DATED MAY 5, 1966, Z-2318706, DENYING YOUR CLAIM FOR OVERTIME OF ONE-HALF HOUR DAILY DURING THE PERIOD DECEMBER 6, 1962, TO JUNE 11, 1964.

IN DENYING YOUR CLAIM INITIALLY WE POINTED OUT THAT THERE WAS NO SUBSTANTIATION OF YOUR HAVING REPORTED ONE-HALF HOUR EARLY AND THAT THERE WAS NO SHOWING THAT THE OVERTIME IN QUESTION HAD BEEN ORDERED OR APPROVED BY PROPER AUTHORITY.

IN REPLY MR. ZIEHM HAS ENCLOSED AN AFFIDAVIT SIGNED BY YOU AND THE OTHER CLAIMANTS DEPOSING THAT THEY WERE REQUIRED AND DID REPORT ONE HALF HOUR PRIOR TO THEIR SCHEDULED TOUR IN ORDER TO ACCOMPLISH CERTAIN ENUMERATED DUTIES INCIDENT TO THEIR POSITIONS. HE ALSO URGES THAT THE ARRANGEMENTS WHEREBY THE GUARDS COMPLETED THESE TASKS PRIOR TO THEIR TOURS OF DUTY WITH THE AWARENESS OF THE PROVOST MARSHAL CONSTITUTED AN APPROVAL BY THEIR IMMEDIATE SUPERIOR WITH FULL AND COMPLETE KNOWLEDGE.

THE CHIEF BASIS FOR THE CLAIM FOR OVERTIME STEMS FROM A DEPARTMENT OF THE ARMY REGULATION CPR H2.2 ISSUED DECEMBER 7, 1962, WHICH PROVIDES AS FOLLOWS:

"2-7. INCIDENTAL DUTIES DIRECTLY CONNECTED WITH THE PERFORMANCE OF A GIVEN JOB ARE CONSIDERED ASSIGNED DUTIES, AND TIME SPENT IN THEIR PERFORMANCE IS TO BE INCLUDED IN THE DAILY SCHEDULE OF WORKING HOURS. THIS INCLUDES TIME SPENT IN TRAVEL WHICH IS AN INHERENT PART OF, AND INSEPARABLE FROM, THE WORK ITSELF (SEE CPR P1.7). HOWEVER, TRAVEL FROM HOME OR LODGING PLACE TO WORK IS NOT CONSIDERED AS WORK TIME. EXAMPLES OF SITUATIONS INVOLVING INCIDENTAL DUTIES ARE OUTLINED BELOW.

GUARDS

"A. WHERE IT IS NECESSARY FOR CIVILIAN GUARDS TO REPORT AT A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTIONS, UNDERGO INSPECTION, AND THEN PROCEED TO THEIR RESPECTIVE POSTS OF DUTY, THE DAILY TOUR OF DUTY IS CONSIDERED TO BEGIN AT THE TIME THEY ARE REQUIRED TO CHECK IN. SIMILARLY, WHERE SUCH PERSONNEL ARE REQUIRED TO CHECK OUT AT A CENTRAL LOCATION, THE DAILY TOUR WILL END AT THAT TIME. GENERALLY, SUCH DUTIES SHOULD NOT REQUIRE MORE THAN ONE-HALF HOUR EACH DAY.'

THE RECORD INDICATES THAT THE REGULAR TOUR OF DUTY FOR GUARDS DURING THE PERIOD IN QUESTION WAS 8 HOURS A DAY AND THE DAILY TOUR OF DUTY WAS NOT CHANGED TO 8-1/2 HOURS A DAY UNTIL JUNE 11, 1964.

WITH RESPECT TO THE ESTABLISHMENT OF WORK SCHEDULES AND PAYMENT OF OVERTIME 5 U.S.C. 911 AND 944 (1958 ED.) PROVIDE AS FOLLOWS:

"SEC. 911. PAYMENT OF OVERTIME; RATES.

"ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES TO WHOM THIS SUBCHAPTER APPLIES SHALL BE CONSIDERED TO BE OVERTIME WORK *

"SEC. 944. ESTABLISHMENT OF BASIC WORKWEEK; WORK SCHEDULES; PAY COMPUTATION METHODS.

"/A) (1) IT SHALL BE THE DUTY OF THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH * * * AND THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, TO ESTABLISH AS OF JULY 1, 1945, FOR ALL FULL-TIME OFFICERS AND EMPLOYEES IN THEIR RESPECTIVE ORGANIZATIONS, IN THE DEPARTMENTAL AND THE FIELD SERVICES, A BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS * * *

"/2) * * * HE SHALL PROVIDE * * * (D) THAT THE BASIC NONOVERTIME WORKDAY SHALL NOT EXCEED EIGHT HOURS * * *"

PURSUANT TO ITS AUTHORITY TO REGULATE WITH RESPECT TO EMPLOYEES COVERED BY THE ABOVE LAW THE CIVIL SERVICE COMMISSION ISSUED THE FOLLOWING REGULATIONS IN 5 CFR 25.211, 25.212 AND 25.221 (REVISED JANUARY 1, 1961) AS FOLLOWS:

"SEC. 25.211 ESTABLISHMENT OF BASIC WORKWEEK AND REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK:

"/A) HEADS OF DEPARTMENTS SHALL, WITH RESPECT TO EACH GROUP OF FULL-TIME OFFICERS AND EMPLOYEES TO WHOM THIS SUBPART APPLIES, ESTABLISH BY REGULATION:

"/1) A BASIC WORKWEEK OF 40 HOURS IN LENGTH WHICH SHALL NOT EXTEND OVER MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS. * * *

"/2) A REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK WHICH SHALL CONSIST OF THE 40-HOUR BASIC WORKWEEK ESTABLISHED IN ACCORDANCE WITH SUBPARAGRAPH (1) OF THIS PARAGRAPH, PLUS SUCH PERIOD OF OVERTIME WORK AS WILL BE REGULARLY REQUIRED OF EACH GROUP OF EMPLOYEES. * * *

"SEC. 25.212 ESTABLISHMENT OF WORK SCHEDULES.

"* * * THE HEAD OF EACH DEPARTMENT SHALL PROVIDE THAT * * * (D) THE BASIC NONOVERTIME WORKDAY SHALL NOT EXCEED EIGHT HOURS * * *

"SEC. 25.221 AUTHORIZATION OF OVERTIME COMPENSATION.

"/A) ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES TO WHOM THIS SUBPART APPLIES SHALL BE CONSIDERED TO BE OVERTIME WORK AND, EXCEPT AS OTHERWISE PROVIDED IN THIS SUBPART, SHALL BE COMPENSATED AS PROVIDED IN SEC. 25.223.

"/B) NO OVERTIME IN EXCESS OF ANY THAT MAY BE INCLUDED IN THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK SHALL BE ORDERED OR APPROVED EXCEPT IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM SUCH AUTHORITY HAS BEEN SPECIFICALLY DELEGATED.'

THE REGULATION RELATING TO OVERTIME WAS MODIFIED BY THE CIVIL SERVICE COMMISSION ON DECEMBER 15, 1963, TO PROVIDE AS FOLLOWS:

"SEC. 550.111 AUTHORIZATION OF OVERTIME PAY.

"/A) OVERTIME WORK MEANS EACH HOUR OF WORK IN EXCESS OF 40 HOURSIN AN ADMINISTRATIVE WORKWEEK THAT IS:

"/1) OFFICIALLY ORDERED OR APPROVED; AND

"/2) PERFORMED BY AN EMPLOYEE.

"SEC. 550.113.

"/C) OVERTIME WORK IN EXCESS OF ANY INCLUDED IN A REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK MAY BE ORDERED OR APPROVED ONLY IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM THIS AUTHORITY HAS BEEN SPECIFICALLY DELEGATED.'

UNDER THE FOREGOING STATUTE AND REGULATIONS OVERTIME IN ORDER TO BE COMPENSABLE MUST BE ORDERED OR APPROVED EITHER AS PART OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OR IF IN EXCESS OF SUCH WORKWEEK SPECIFICALLY IN WRITING BY AN OFFICER OR EMPLOYEE AUTHORIZED TO DO SO. IN THE INSTANT CASE THE EXTRA ONE-HALF HOUR PER DAY ALLOTTED FOR THE PERFORMANCE OF INCIDENTAL DUTIES DID NOT BECOME PART OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF THE GUARDS UNTIL ORDERED ON JUNE 11, 1964, BY AN OFFICIAL HAVING AUTHORITY TO DO SO.

BETWEEN THE PERIOD DECEMBER 6, 1962, AND MAY 8, 1963, ONLY THE COMMANDING OFFICER HAD THE AUTHORITY TO ORDER OVERTIME AND THERE IS NO INDICATION THAT HE EXERCISED IT TO DIRECT THE GUARDS TO REPORT ONE HALF HOUR IN ADVANCE OF THEIR SHIFT. ON MAY 8, 1963, THE AUTHORITY TO DIRECT SUCH OVERTIME WAS DELEGATED TO THE EXECUTIVE OFFICER, WHO WAS ALSO THE PROVOST MARSHAL IN CHARGE OF THE SECURITY FORCE. THERE IS LIKEWISE NO INDICATION THAT HE ORDERED OR INDUCED THE GUARDS TO REPORT EARLY FOLLOWING THIS AUTHORIZATION TO APPROVE OVERTIME PRIOR TO THE CHANGE IN THE WORK SCHEDULE ON JUNE 11, 1964. THE CHIEF OF THE SECURITY OFFICE WHO WAS THE SUPERVISOR OF THE GUARD FORCE NEVER POSSESSED THIS AUTHORITY.

THE PROVOST MARSHAL WAS APPARENTLY AWARE THAT AN INFORMAL ARRANGEMENT EXISTED BETWEEN THE WORK-SHIFT SUPERVISORS AND THE GUARDS WHEREBY THEY WOULD REPORT AT A CENTRAL LOCATION SUFFICIENTLY IN ADVANCE TO ACCOMPLISH ANY INCIDENTAL DUTIES SUCH AS DRAWING A GUN OR RECEIVING ASSIGNMENTS IN ORDER TO RELIEVE THE OFF GOING WATCH PROMPTLY AT THE END OF THE SHIFT. THERE WAS NO ORDER OR REQUIREMENT TO THIS EFFECT AND NO DISCIPLINARY ACTION WAS TAKEN FOR FAILURE TO REPORT EARLIER THAN THE ACTUAL BEGINNING OF THE SHIFT.

THE CHIEF OF THE SECURITY OFFICE INDICATES THAT NO PARTICULAR TIME WAS SET FOR REPORTING PRIOR TO THE BEGINNING OF A WATCH. SOME INDIVIDUALS REPORTED 30 MINUTES EARLY AND OTHERS CLOSER TO THE BEGINNING OF THE SHIFT. NO RECORD WAS KEPT OF THE TIME OF REPORTING AND DEPARTURE. ALTHOUGH NO TIME CLOCKS WERE USED DURING THE PERIOD IN QUESTION THEY HAD BEEN IN USE JUST PRIOR TO THIS TIME. AN ANALYSIS OF SUCH CARDS FOR THE PERIOD DECEMBER 25, 1961, TO MAY 13, 1962 (WITH NO CHANGE IN REPORTING PROCEDURES ACCORDING TO THE CHIEF OF THE SECURITY OFFICE) INDICATES THAT NONE OF THE EMPLOYEES HAD PUNCHED IN 30 MINUTES EARLIER FOR EACH DAY THAT THEY WORKED IN THE ENTIRE PERIOD AND SOME OF THE EMPLOYEES HAD NOT PUNCHED IN 30 MINUTES EARLY ON EVEN ONE DAY DURING THE ENTIRE PERIOD.

THE COURT OF CLAIMS HAS HAD OCCASION TO CONSIDER CLAIMS SUCH AS YOURS. IN A RECENT CASE, BILELLO V UNITED STATES, 174 CT. CL. 1253 (1966) THAT COURT WAS CONFRONTED BY THE CLAIMS OF SEVERAL SECURITY GUARDS FOR OVERTIME PERFORMED PURSUANT TO VERBAL ORDERS OVER A PERIOD OF 11 YEARS. IN THEIR CASE ALSO DESIGNATED OFFICIALS WERE REQUIRED TO APPROVE, IN ADVANCE AND IN WRITING, ALL OVERTIME WORKED AND ON A DESIGNATED FORM. IN DENYING THE PLAINTIFFS' CLAIMS THE COURT ANALYZED SEVERAL ANALOGOUS CASES AND STATED:

"THE COMMON DENOMINATOR DERIVED FROM THESE RESULTS IS THAT A REGULATION REQUIRING APPROVAL OF OVERTIME BY A DESIGNATED OFFICIAL BEFORE IT CAN BE PAID IS BINDING ON CLAIMANTS UNLESS THE REGULATION IS UNREASONABLE OR THE OFFICIAL WHO HAS WITHHELD FORMAL WRITTEN APPROVAL HAS NEVERTHELESS ACTIVELY INDUCED AND ENCOURAGED THE OVERTIME. MERE KNOWLEDGE ON HIS PART, WITHOUT AFFIRMATIVE INDUCEMENT OR WRITTEN SANCTION, WOULD NOT SEEM TO BE SUFFICIENT. * * *"

IN RESPONSE TO THE PLAINTIFFS' CLAIMS THAT IT WAS A BREACH OF DUTY ON THE PART OF THEIR SUPERVISORS NOT TO SUBMIT THEIR OVERTIME CLAIMS TO THE PROPER OFFICIAL THE COURT SAID:

"* * * ADMINISTRATIVE EFFICIENCY REQUIRES OBSERVANCE OF ORDERLY FORMS, AND BY VOICING THEIR DEMANDS THROUGH PROPER CHANNELS THE PLAINTIFFS CONCEIVABLY COULD HAVE SECURED A RULING WHICH WOULD HAVE RESULTED EITHER IN AN ORDER FOR OVERTIME COMPENSATION OR IN A JUSTIFIED REFUSAL ON THE PART OF THE PLAINTIFFS TO CONTINUE PERFORMING OVERTIME WORK WITHOUT COMPENSATION.'

IN TABBUTT ET AL. V UNITED STATES, 121 CT. CL. 495 (1952), A CASE INVOLVING CLAIMS FOR OVERTIME COMPENSATION BY INVESTIGATORS OF THE TREASURY DEPARTMENT, THE COURT WAS PRESENTED WITH A FACTUAL SITUATION SIMILAR TO YOURS. THE PROPER OFFICIALS HAD NOT ORDERED OR APPROVED THE OVERTIME, NOR HAD REQUEST BEEN MADE FOR OVERTIME. THE OPINION STATES THAT:

"* * * THE ONLY SEMBLANCE OF AN APPROVAL BY ANY OFFICIAL WAS THE APPROVAL BY THE INVESTIGATOR-IN-CHARGE OF * * * THE DAILY REPORTS MADE BY THE PLAINTIFFS. HIS APPROVAL OF THESE DAILY REPORTS COULD HARDLY BE SAID TO TAKE THE PLACE OF AN ORDER FOR THESE MEN TO WORK OVERTIME, OR OF AN APPROVAL OF THEIR CLAIM TO COMPENSATION FOR HAVING DONE SO. * * *"

CONSISTENT WITH THE FOREGOING AND THE FACT THAT YOU HAVE NOT FURNISHED ANY EVIDENCE THAT YOU WERE SPECIFICALLY REQUIRED TO PERFORM OVERTIME SERVICES BY PROPER AUTHORITY DURING THE PERIOD IN QUESTION OUR PRIOR ACTION OF MAY 5, 1966, DISALLOWING YOUR CLAIM MUST BE AND IS SUSTAINED.